Chemical and Biological Warfare Hearings, Part 3
by Truth and Reconciliation Commission
ON RESUMPTION: 30TH JULY 1998
MR VALLY: Thank you Mr Chair. We want to proceed with leading the evidence of Doctor Wouter Basson, and I'd ask the Chairperson to remind him he is still under oath.
CHAIRPERSON: Doctor Basson, you are reminded that you are under oath.
WOUTER BASSON: (s.u.o.)
MR VAN NIEKERK: Mr Chairman, as you may by now know, my name is van Niekerk and I'm here once again representing Doctor Basson in a limited capacity. In the time that has been put at my disposal, I have been unable to obtain independent legal representation for Doctor Basson. I myself yesterday telephoned eleven counsel, either senior counsel or senior-junior counsel who would be most suitable to assist in an instance like this. We were unable to obtain anybody, either because ...[intervention]
CHAIRPERSON: Mr van Niekerk, I don't want to cut you short, am I understanding you to be asking for another postponement?
MR VAN NIEKERK: I'm telling you this morning Sir, that Doctor Basson has no legal representative able to assist him on what, for the matter of convenience I will call the merits of this matter.
It is my submission that under the circumstances the matter cannot proceed this morning.
CHAIRPERSON: You can't say it cannot proceed. You don't make that sort of submission to me. You are an officer of the court. Make a proper submission Mr van Niekerk.
MR VAN NIEKERK: Mr Chairman, I submit to you that in view of the fact that Doctor Basson does not have proper legal representation at this hearing this morning, he is unable to proceed. He is entitled to not go into the witness box. He is entitled to refuse to answer any questions until such time as he has proper legal representation.
CHAIRPERSON: Do you authority for that?
MR VAN NIEKERK: Yes, I do indeed Sir. I took the precaution Sir, of taking senior counsel's advice on this point. Senior counsel's advise is to the effect that it would be unlawful ...[intervention]
CHAIRPERSON: That is advice. I'm asking if you have authority.
MR VAN NIEKERK: Yes, I do Sir.
CHAIRPERSON: What is your authority?
MR VAN NIEKERK: May I just hand up counsel's opinion which enumerates the various, well I'm ...[intervention]
CHAIRPERSON: I'm just asking you to give us your authority for saying Mr Basson as a matter of entitlement, in view of everything that happened yesterday, that as a matter of entitlement he should refuse to answer any questions put to him. He should refuse to be sworn in.
MR VAN NIEKERK: He has already been sworn in Sir.
CHAIRPERSON: He should to refuse to take the stand.
MR VAN NIEKERK: That is correct.
CHAIRPERSON: What is your authority?
MR VAN NIEKERK: My authority is based on the advice that I have received from Advocate G D van Schalkwyk SC, one of Cape Town's most senior counsel. He had given me a legal, a written legal ...[intervention]
CHAIRPERSON: What's your authority Mr van Niekerk for the averment ...[intervention]
MR VAN NIEKERK: Mr Chairman, I'm endeavouring to explain to you and I'm not meeting with much success. The advice I've received from Advocate van Schalkwyk sets out various legal authorities, South African Law Report authorities. As a result of which he advises, and I shall read at this stage the last paragraph of his opinion and a later stage I shall ask your permission to place the whole opinion on record.
CHAIRPERSON: No, no, no. If you feel so inclined you can hand that legal opinion which was for you and not for us, you can hand it in but it certainly will not be read into the record.
MR VAN NIEKERK: Did I - sorry, Mr Commissioner, I didn't hear you. Did I understand you to say it would not be taken into reckoning?
CHAIRPERSON: No, I didn't say that, I simply said it will not be read into the record.
MR VAN NIEKERK: I see, very well. At this stage I read you the ultimate paragraph of Advocate van Schalkwyk's opinion. He says:
"I am accordingly of the view that although consultant was obliged in terms of the Act and Court Order, to appear before the Committee on the 29th of July 1998, he is entitled to a postponement so as to afford him a reasonable opportunity to instruct a suitable legal representative. Should consultant not be afforded such an opportunity, the proceedings before the Committee and any questions put to consultant would not be lawful"
That is the opinion of Advocate van Schalkwyk. And I now ask ...[intervention]
CHAIRPERSON: There is nothing there that says it therefore entitles him:
a) to refuse to answer questions that are put to him, and
b) to refuse to take the stand.
MR VAN NIEKERK: Mr Chairman, you did not allow me to read his opinion into the record, I therefore gave you the last paragraph of his opinion. I now ask leave to hand copies of that opinion in to the Commission.
ADV POTGIETER: Mr van Niekerk, is there any legal authority that you rely on? This is strictly irregular, I mean really, please.
MR VAN NIEKERK: With great respect Mr Chairman, it not, what I am putting to you is not irregular.
ADV POTGIETER: No, no, please listen to me. Have you got any legal authority for the propositions that you're making to us? Now please cite the authorities for us. please, don't waste time. Please, would you go ahead?
MR VAN NIEKERK: I'm looking for the authorities on the opinion which I received this morning Mr Commissioner. The authorities quoted by Mr van Schalkwyk is HEATHERDALE FARMS (PTY) LTD AND OTHERS v THE DEPUTY MINISTER OF AGRICULTURE AND ANOTHER, 1980 (3) SALR 476 at 586 ...[intervention]
ADV POTGIETER: Is that in this document that you've handed in here?
MR VAN NIEKERK: ...[inaudible] That authority says:
"It is clear on the authorities that a person who is entitled to the benefit of the audi alteram partem rule, need not be afforded all the facilities which are allowed to a litigant in a judicial trial. He need not be given an oral hearing or allowed representation by an attorney or counsel. He need not be given an opportunity to cross-examine and is not entitled to discovery of documents"
And then you will see that it's underlined what van Schalkwyk says.
"But on the other hand, and for this no authority is needed, a mere pretence of giving the person concerned a hearing would clearly not be a compliance with the rule, nor in my view will it suffice if he is given such right to representations as in the circumstances, does not constitute a fair and adequate opportunity of meeting the case against him. What would follow from the last mentioned proposition is: Firstly, that the person concerned must be given a reasonable time in which to assemble the relevant information and to prepare and put forward his representations. Secondly he must be put in possession of such information as will render his right to make representations a real and not an illusory one"
This decision you will see Mr Chairman, has been approved of in numerous cases including inter alia BUTHELEZI AND OTHERS v THE ATTORNEY GENERAL NATAL, 1986 (4), BILL v STATE PRESIDENT AND OTHERS 1987 (1) and TRAV v THE ADMINISTRATOR OF THE TRANSVAAL AND OTHERS, which is an old 1989 case.
ADV POTGIETER: Have you got any other authority?
MR VAN NIEKERK: Those are the authorities which have been quoted to me by Advocate van Schalkwyk. He had limited time in which to prepare this opinion. It was handed to me while I sat in the court this morning and my client will act upon the advice given to him by senior counsel in this matter.
It is my submission, my very respectful submission, that my client is entitled to act upon the advice that he receives from senior counsel.
CHAIRPERSON: Mr van Niekerk, just on a cursory reading of the opinion, you have had even more time than I have had, do you appreciate that that opinion speaks to the audi rule, especially the underlying places. They are simply addressing the question of whether a person will get a fair hearing if the person is given an opportunity to be heard. And that to that extent, all that that person needs, in the words of your own opinion, that the person must have had a reasonable time in which to assemble relevant information, to prepare and to put forward his representations.
It does not necessarily address the question of legal representation. It addresses the question of fairness, rules of natural justice in the context of a person being able to know what the case is that the person is going to be meeting and whether or not on that basis, there is sufficient information at his or her disposal for him or her to be able to meet the case against him or her. Your client is more than aware of what the case is against him.
I'm not taking the right away from him and his entitlement to legal representation. We've spent the best part of yesterday, and I dare say you being a competent legal representative having received your instructions the day before yesterday could easily have taken instructions on the merits between yesterday and today to be able to represent him in the limited fashion that in any tribunal of this nature, it not being a court of law, legal representatives need to be au fait with matters.
I'm not giving a ruling, I'm just giving an indication to you what my own prima facie view is of this authority. It's an authority, it's a 1980 authority, it's not improved by any of the other authorities that are relied upon as support thereof.
Are there any submissions you wish to make?
MR VAN NIEKERK: Mr Chairman, I'm flattered by your suggestion that given just over 48 hours I'm able to represent Doctor Basson on the merits of this matter. I however have to disagree with you. I wish to say that neither I nor any other counsel in this town, on that time scale is able to represent a client properly in the circumstances.
Counsel has advised that Doctor Basson is entitled to legal representation, that his legal representatives are entitled to have time to properly qualify themselves and that if he's not given that opportunity the proceedings will be unlawful.
You will recall Mr Chairman, that Mr Justice Hlophe ordered Doctor Basson to be here yesterday and to answer questions lawfully put to him.
ADV POTGIETER: Mr van Niekerk, has your position changed, that if Doctor Basson is required to testify you will withdraw?
MR VAN NIEKERK: That is absolutely correct. I am not here to assist or represent Doctor Basson on the merits of this matter. I am instructed by Doctor Basson that the documentation is voluminous, running in his case to in excess of 100 files, one of which he showed me this morning. I will then withdraw as the attorney from these proceedings this morning.
I'm here merely for this purpose, to explain to you he has no legal representative. I tried to get him legal representatives. You Sir, are a member of the Cape Bar. The advocates that I spoke to yesterday in an endeavour to find assistance for Doctor Basson were: Advocate van Schalkwyk SC, Advocate W Burger SC, Advocate Karb(?) - should I just qualify this, these are the people I phoned, some of them were out of town, Advocate Carstens SC, Advocate Fitzgerald SC, Advocate Klem SC, Advocate van Zyl, Advocate Martins, Advocate Roux, Advocate Nudiget(?), Advocate Shalto-Douglas, Advocate I Jamie. Certain of those were out of town or in court or not in chambers.
I understand that in addition, my Pretoria correspondents were in touch with Advocate Davis, Advocate Gouws, Advocate van Wyk, Advocate de Jager and Advocate van Zyl, none of whom are available today.
ADV POTGIETER: So have you got any other submissions on the ...[intervention]
MR VAN NIEKERK: ...[inaudible] to obtain a qualified legal representative to represent Doctor Basson and we have been unsuccessful in those endeavours.
ADV POTGIETER: Thank you for your assistance Mr van Niekerk.
CHAIRPERSON: Mr Vally?
MR VALLY: Mr Chair, with the greatest of respect to my learned friend, the fancy footwork and the deception continues to frustrate both the order granted by Justice Hlophe as well as to frustrate the TRC from carrying out its mandate.
We know Doctor Wouter Basson has been moving in those dark circles for many years and he's repeating his manoeuvring here. I make this submission for the following reasons:
What Mr van Niekerk tells us is contradicted by his instructing attorney, Mr Adolf Malan.
Mr Adolf Malan sent us a letter this morning. It arrived at our offices between 08H00 and 08H30.
Mr Adolf Malan does not tell us what Mr van Niekerk tells us.
I assume that Mr van Niekerk is aware of this letter. If he is not Mr Chair, and I've put a copy of this letter forward to you, I will make one available to him.
MR VAN NIEKERK: I've been given a copy of a letter which was handed to me as I left my chambers this morning. I haven't had an opportunity of studying it yet.
MR VALLY: Well let's see what it says. Firstly, he confirms he appoint, in the second paragraph, a correspondent to carry over his instructions to the Commission.
Secondly, he says that because of the Judgment on the 29th of July, and they are awaiting the reasons for the Judgment before determining whether they want to appeal against the Judgment.
They're still maintaining their submission that their client has a right to refuse in spite of a Judgment of a Judge of the Cape High Court.
He says if he can't get alternative advocates - Mr van Niekerk, I would appreciate it if you didn't interrupt me which I am talking:
"If alternative advocates had to be obtained because they were not available to read through records of 600 pages. It is our submission that no person could prepare completely for this and could assist him. Advocate Cilliers is informed about this matter and this is our respectful submission that he is the only person that can assist our client"
A contradiction in terms of what Mr van Niekerk puts to us today. He says clearly that no other person is suitable. Now we hear Mr van Niekerk say he went to look for 11 advocates. The position taken by Mr Malan for whom Mr van Niekerk as correspondent is that no-one but Advocate Cilliers is suitable. This is his letter. He then goes on to say that Advocate Cilliers is only available on Friday. He then gave us, in spite of what we said yesterday, can he not answer questions put to him in writing. He alleges that he did not respond to the questions put to him on the 30th of April 1998 because they had a right to refuse to answer questions, although the correspondence doesn't bear that out. In terms of the correspondence they kept promising to answer questions, kept delaying the matter until the hearing started. So this obvious contradiction is again a sign of the deception and the manoeuvring of Doctor Wouter Basson to sabotage this Commission. Why do I say that? Doctor Basson stated under oath yesterday that he approached Colonel Kaiser and Doctor Basson and Colonel Kaiser know each other personally. We called Colonel Kaiser yesterday. If the Chairperson recalls, we put forward a letter before this Commission where Colonel Kaiser said expressly, he advised that he contacted Mr Malan and Malan did not then, which was on Tuesday, nor previously request consent to brief alternative counsel. This is the letter we read into the record yesterday. When Doctor Basson told this Commission under oath that he had personally approached Colonel Kaiser, we called Colonel Kaiser and his response is set out in our letter dated the 29th of July 1998, a copy of which has been made available to my learned friends and to the Commission and it says:
"Your letter dated 29th of July 1998, as well as telephonic conversations with myself refers.
2. I hereby confirm that contents of the letter from the Truth and Reconciliation Commission to Mr Malan. A request for alternative legal representation for Doctor Basson was never received by this office"
What could be clearer than that?
This flies in the face of Doctor Wouter Basson's evidence under oath yesterday and those purported instructions or whatever that note was which Mr van Niekerk read into the record yesterday. It was a confusing instruction because some of it was in the first person and some of it was in the third person but it said again that they had been refused assistance by the office of the SANDF and Colonel Kaiser is specifically mentioned there.
Now we have a position where Mr van Niekerk says he tried 11 counsel. We have Mr Malan who tells us in a letter that no-one except Advocate Cilliers is in a proper position to represent Doctor Wouter Basson. We have Colonel Kaiser say he was never approached to ask for legal assistance to provide alternative counsel for Doctor Wouter Basson. And with respect, Mr Malan's letter is also contemptuous of the ruling of Justice Hlophe:
Number 1: They have not filed a notice of appeal.
Number 2: Until an appeal is heard and decided upon, Justice Hlophe's judgment stands.
MR VAN NIEKERK: Mr Chairman, may I just interject at that stage. It's not possible to file a Notice of Appeal at this stage and I would have thought my learned friend would have been aware of that fact. Judge Hlophe has not given ...[intervention]
MR VALLY: Mr Chair, I have objected before.
CHAIRPERSON: Mr van Niekerk, you have a right to reply. You can note whatever it is that you think is not proper unless you are being misrepresented and this is not a misrepresentation, it is a statement of the understanding of what the legal position is and you can reply in your right to reply to that.
MR VALLY: The point is very simple Mr Chair. Justice Hlophe's Judgment stands. That's is the order of the Cape High Court. And I would like it if Mr van Niekerk could explain the contradictions between his stance and the stance of his instructing attorney, Mr Malan. That would be very useful for us to understand, why they seem to be on different wavelengths.
Let's go on. I will deal with this opinion, and that's all it is, an opinion. There is authority and I in fact would submit this authority would be superseded by a situation where Doctor Basson has purposely created a situation by not seeking alternative counsel timeously when he did have the time, to create a situation where we cannot hear him.
Let us just talk about some of my authorities. There's DUNCAN v ROETS, 1947 at page 226 TPD Decision.
MR VALLY: At this stage there were no volumes. 47.
MR VALLY: TPD.
"As counsel who had been briefed"
I'll just go briefly through this issue. This is LUCAS AJ, and I will read from the record at page 226 going to page 227:
"I'm asked to postpone the hearing of this application or some later date. The matter came before the Court last Thursday and the learned Judge then postponed it to a date to be arranged with the registrar and gave instructions that it was to be an early date. Last Thursday the registrar arranged for the case to be argued today. I'm informed by Mr Becker who is briefed to apply for the postponement, that counsel who has been engaged for the respondent could not appear toady. I do not think that that is any reason why the case should be postponed. While the Court will do its best to meet the convenience of counsel, convenience of litigants must have prior consideration. Counsel must make themselves available for the dates assigned or else surrender their briefs"
I refer you to another authority: D'ANOS v HAYLON COURT (PTY), 1950 Volume 2 SA 40 Cape Provincial Division. This was a full bench of the Cape Provincial Division. In this matter, 1950, Volume 2. I quote at page 43:
"The appellant said that he much preferred to have counsel who drafted the plea to argue an exception to that plea. He also said he approached various other counsel but they were also unable to appear"
And this is what the Judge says, this is now Fagan AJP at this stage:
"However we know that we have a big Bar at the Cape and there is no allegation nor could there be one that no counsel could be found"
This is relevant to this case because we're talking about not only the Cape Bar, these are attorneys whose offices are based in Pretoria. Advocate Piet de Jager SC is from the Pretoria Bar, Advocate Cilliers if from the Pretoria Bar, Advocate van Zyl is from the Pretoria Bar.
There is no indication that anyone from the Pretoria Bar has been tried, and to say that there's no counsel available at the Cape Bar at all. If that is the allegation then I'm very surprised.
The next case: COHN v COHN, Orange Free State Provincial Division, 1965 (3) and I quote at page 206(e):
CHAIRPERSON: What is the page reference for this authority?
MR VALLY: Page 203, I beg your pardon Mr Chair, at 206.
"What he did was to insist on a postponement because the applicant's advocate with which he already had complete consultations was not available. In the absence of an allegation of a short notice he was justified to refuse a postponement because this divorce case could be handled on short notice by a different Advocate and it is not alleged that no advocate was available"
Now I'll come back to this allegation that this case is so complicated that you couldn't brief a person at short notice. I will come back to that in a short while.
And finally, the case of: STATE v MOALUSI AND OTHERS, 1994 (2) SAR 604 Orange Free State Provincial Division. I will just read from the head note:
"Legal practitioners could not be permitted to dictate and determine when Court proceedings should commence"
In that case counsel kept on arriving late and one occasion the Court started without counsel and counsel made an application for the recusal of the Judge. Now these are my authorities.
We keep hearing of the voluminous nature of the documentation before us. That is true, but a lot of this information is also very technical and in fact you'd need a chemistry degree to understand all of it but that is not what counsel is here to do. The legal representative is here to protect Doctor Wouter Basson's rights. These are crisp legal rights. They do not need a full and detailed understanding of all the documentation before us.
There is just too much documentation and it will take many, many years for any individual to come to grips with it. But to come to grips with his client's rights are, which were fully canvassed in the case. There were heads of arguments prepared, argument prepared, there were case authorities cited, there were affidavits submitted by Doctor Wouter Basson. These issues are crisp and clear. The constitutional points are crisp and clear. Any legal representative worth his salt can come to grips with these issues in a very short time.
What have we got here? We have a situation where on the 14th of July they were aware this the Court Order we're looking for. On the 27th of July we get our order. The fact that any prudent practitioner, any prudent person was aware that a certain order was being sought and did not take steps in case that order was granted cannot be laid at the feet of this Commission. The fact that the Order was granted by Justice Hlophe on Monday, knowing that one of the arguments raised by Doctor Wouter Basson was that his counsel were not available on the 29th, it's clear what the thinking of the Court was on this issue. And that judgment must be honoured, alternatively if it is not honoured then Doctor Wouter Basson, and respectfully submit is being deceptive once again, should be held in contempt.
Let's look at this opinion as supplied by my learned friend. Besides all the restating of the facts ...[intervention]
ADV POTGIETER: Mr Vally, perhaps it could be of some assistance. Could I indicate that all that really is relevant for our purposes insofar as this document is concerned are references to authorities, to legal authorities. The opinion expressed by this particular practitioner is something that is between his client and himself so you don't need to address us on the weight or the effect of the view which is expressed by counsel in this document. So we really just want you to, if you're so advised, to respond to whatever legal authorities are raised here.
MR VALLY: Thank you Advocate Potgieter.
Well the authority that is quoted is simply one case and the other case I'll refer to as having approved of this decision. This does not conflict with our position. As, and I've only got this section put before me by my learned friend, it says clearly in this opinion and I quote from page 6, the second sentence"
"He need not be given an oral hearing or allowed representation by an attorney or counsel. He need not be given an opportunity to cross-examine and he is not entitled to discovery of documents but on the other hand a mere pretence of giving a person concerned a hearing would clearly not be a compliant for the rule, nor in my view will it suffice if he is given such right to representations as in the circumstances does not constitute a fair and adequate opportunity of meeting the case against him"
Now let's understand what is the case against Doctor Wouter Basson. We don't have a case against him. We are making inquiries from him as a project officer of the Chemical and Biological Warfare Programme which, there is prima facie evidence, was a motley collection of scientists acting in concert to produce weapons, either biological weapons of mass destruction like cholera or weapons, insidious weapons to kill individuals such as paraquat in whisky or poisons in chocolate or anthrax on different filters of cigarettes.
This is the prima facie evidence we've had before us which witnesses were cross-examined by Doctor Wouter Basson's legal representatives. They were present. We want to get Doctor Wouter Basson's perception on these things. He is not on trial. His rights which need to be protected can be protected. He at very least was aware on the 14th of July that he would need legal representation.
We've already pointed out that when they brought an application to review our ruling, that he should not give evidence before us, they brought it on ordinary time scale and thus again attempting to frustrate this Commission. Because of course Doctor Wouter Basson's counsel knew that the life of the Human Rights Violations Committee comes to an end at the end of July. This they were aware of at all stages, and whether Justice Hlophe had ruled on the 29th or the 30th of July, the fact of the matter is they would have been aware that if we had won the case it would have had to have been heard before the end of July. He is purposely and I submit this, put himself in this situation where he is claiming: "I have no legal counsel".
Doctor Wouter Basson we have heard, is an astute person. We've heard he is very intelligent. We have heard he is involved in number of court applications. We've heard that he has got a number of other matters where he has been represented in court. He knows what he is doing and he is consciously trying to disrupt the activities of the Human Rights Violations Committee. This is my submission.
I want to further add that with respect to my learned friend and with respect to Mr Adolf Malan, the contradictions we are encountering in terms of what Mr Malan tells us and Mr van Niekerk tells us, adds weight to my argument, that this is duplicitous strategy to frustrate this Commission and in view of the importance of this particular hearing and the pivotal role of Doctor Wouter Basson in the Chemical and Biological Warfare Programme, that is panel should not countenance this attitude.
We have had an indication from Mr Malan's letter, we haven't heard from Mr van Niekerk on the issue of Mr Cilliers being available tomorrow. I'm talking about what's heard from Mr van Niekerk today.
Mr van Niekerk advised us yesterday that he managed to get hold of Advocate Cilliers who said he was available only on Friday. He said he did not get hold of Mr Malan or Mr van Zyl. We still don't know what their position is. We have not heard about Advocate Piet de Jager. We still don't know what that position is.
I respectfully submit that Doctor Wouter Basson be called to the stand. That if he refuses to answer questions, that we cite him for contempt and consider bringing criminal charges against him as well.
Finally, in addition to that, that he be called to appear again before us tomorrow because we now hear that Advocate Cilliers will be available tomorrow. So that we charge him, we consider charging him. We consider citing him for contempt of the Order granted by Justice Hlophe and we call him again tomorrow to see how far we can get, and if necessary we sit as late as is necessary within our mandate of ending on the 31st of July 1998, to try and get the answers we need from Doctor Basson to find out about this ostensible planned genocide of people in this country. Planned from the evidence we've got, under the control and instigation of Doctor Wouter Basson. Thank you Mr Chair.
CHAIRPERSON: Thank you Mr Vally. Before Mr van Niekerk replies, you have indicated that and you have made a submission that you are urging this panel to cite, were we to go that direction, that we would have to cite Mr Basson for contempt.
I don't know whether you'd need time or whether you are ready to address us on the question of our competence to exercise a prerogative which might have ex facie curiae to enforce a sanction for contempt of court. You need not address me now if you are not ready to do so because I'm going to put the same question to Mr van Niekerk. Mr Vally?
MR VALLY: I could respond briefly. The contempt charges relate to criminal sanctions in terms of our Act. We would just have to initiate charges. That aspect of contempt is in terms of contravention of Section 39.
The second aspect is making an application to court by way of urgency regarding the order granted by Justice Hlophe and again they would have to brief counsel and move by extreme urgency to cite Doctor Basson for contempt in terms of the Court Order, making application to court. So there are two legs to this Mr Chair, the one is the criminal sanctions which include the issue of contempt and the other one is the enforcement of Justice Hlophe's Order. Thank you Mr Chair.
ADV POTGIETER: Mr Vally, perhaps you might very well need to think about this. The Chairperson had put a slightly different scenario to you, analogous to the situation where a person is contemptuous in the fact of the court and the prerogative of the court to take summary action there and then against that person.
CHAIRPERSON: And I say so without interrupting, in view of Section 39(C).
ADV POTGIETER: In other words, we have the practical situation in courts where if there is contemptuous conduct on the part of at witness or a party in the fact of the court, that the court has the prerogative as part of the sanction, for example to have the person summarily incarcerated. I think it's in that sort of direction that the question of the Chairperson goes, so perhaps you should apply your mind to that particular question which is slightly broader than the way in which you responded at this stage, thank you.
CHAIRPERSON: That is exactly what I was having in mind.
Mr van Niekerk?
MR ARENDSE: Chairperson, can I as representing an interested party also address you?
CHAIRPERSON: Yes, certainly.
MR ARENDSE: Before Mr van Niekerk does so. Chairperson, in anticipation of this application this morning I took instructions from the government, which I represent in these hearings and our position is that the hearing of Doctor Basson's evidence should continue, notwithstanding the fact that in all likelihood he is not going to be legally represented.
Our view is that it would be perfectly lawful for you to rule that he give evidence even without legal representation and our reasons for saying so are the following: The cases cited in the opinion of my colleague predates the Interim and the Final Constitution.
It doesn't it take that into account at all. It obviously doesn't take into account, these are the cases, they don't take into account the Act which constitutes this Commission and this panel and the Act of course, it is common cause, is constitutional. It hasn't been ruled to be unconstitutional.
The cases addresses the audi principle. I think this you pointed out already. It does not address the question of legal representation. For audi to take place doesn't incorporate necessarily the right to legal representation.
The cases cited also don't take into account the prevailing exceptional circumstances of this Commission's mandate which is that your mandate expires at midnight on the 31st of July 1998. However, and this is most significant, the Court Ruling does take into account the circumstances.
The Judge was obviously aware and was made aware in no uncertain terms by counsel acting for Doctor Basson, that the Commission's mandate expires on Friday, that there's a mountain of evidence, that a lot of this evidence is complex and complicated, was also aware that Doctor Basson's lawyers would not be available to assist him, notwithstanding that the High Court in Cape Town made a ruling that he be compelled to testify.
In any event Chairperson, the cases that are cited in the opinion do recognise that audi can be waived in exceptional circumstances. It says so in terms in Traub's case. In the circumstances Chairperson, a reasonable opportunity has been given to Doctor Basson to obtain legal representation. In saying so, Section 34(1), the TRC Act if I may call it that, which grants him and which he seems to be relying on, the right to legal representation.
In my submission this panel has not denied him that right. It has given him a reasonable opportunity to exercise the right. The right to legal representation is not found in the Constitution except where a person is detained or is facing a criminal trial. That is not the situation here in this case.
In any case Section 36 which is the Limitation Clause in the Constitution recognises that such a right may be limited, having regard to the prevailing situation, the nature of the right, the content etc. In that regard I refer to what I said above.
Furthermore, the right to legal representation, if one looks at the table of non-dirigible rights in the Constitution, it is not found there. It is a right which may be deviated from.
So our submission is that these hearings should proceed. The only question in my submission is whether you should rule that he testify without legal representation. It's clear that Mr van Niekerk if you do make such a ruling, will leave and Doctor Basson will be without legal representation. In our view you should give such a ruling contrary to the opinion. It is perfectly lawful for you to do so and is not reviewable in a court of law. Thank you.
CHAIRPERSON: Mr van Niekerk?
MR VAN NIEKERK: Mr Chairman, I'll deal at the outset with certain of the facts put in argument by Mr Vally. The first point that he raised which I deal with says the stance adopted by me on behalf of Doctor Basson this morning is contradictory to that of the letter of Mr Malan. With respect Sir, it is indeed not that at all.
I have gone no further than to say that there is nobody that I can find in the time available, who is able to assist Doctor Basson today. Mr Malan says Advocate Cilliers is the only man who can assist him and that indeed is so. I accept that. There is nobody else at this stage who has qualified himself as has Advocate Cilliers. So we are not contradicting one another in that regard.
A further point made by Mr Vally is that Doctor Basson is basically the creator of his own misfortune in that he has been deceptive and that he has ducked and dived in an endeavour not to have to give evidence.
Mr Chairman, may I point out with great respect to you, that Doctor Basson attended the hearings in this room from the 9th to the 12 of June of this year and the Commission and/or Mr Vally in it's wisdom decided they would not call him.
It must now not be said and laid at the door of Doctor Basson ...[intervention]
CHAIRPERSON: That's misrepresentation of the true position I must say. We called and swore Doctor Wouter Basson on or about the 10th of June and we were about to take evidence from him when his counsel, maybe on his instructions, brought an application that his evidence must not be heard because he was exercising his constitutional rights to remain silent and the right against self-incrimination. That is what the intervening circumstances were.
MR VAN NIEKERK: Mr Chairman, my instructions are from Doctor Basson and I would be indebted to you if you would correct me if I'm wrong, was that on the Friday morning you ruled that Doctor Basson should give evidence and that Mr Vally then decided, notwithstanding that ruling, - that you then Sir, decided that the evidence of someone called Knobel, General, Doctor or whatever he may be, should be finished before the evidence of Doctor Basson was led.
Mr Chairman, then Mr Vally raises the next point that: well, I tried the Cape Bar and that there were 11 advocates that were not available but Mr Chairman you will recall that this morning I pointed out and told you in terms and I gave you the names Sir, that Advocates Davis, Gouws, P van Wyk, P de Jager and van Zyl of the Pretoria Bar were also approached, there were five of them and they were also not available. If my learned friend didn't hear that, well I repeat it for his benefit.
Then Mr Chairman, in addressing you, Mr Vally quoted from counsel's opinion on page 6 and I accept that that was an inadvertence that he, or at least I hope it was an inadvertence that he omitted to say certain words but you will see from the middle of that page where Mr Vally quoted it says:
"But on the other hand, (and for this no authority is needed)"
Those words were omitted by my learned friend. I accept when one reads something you skip it inadvertently and I am sure that Mr Vally did not mean to leave it out in his submission to yourself.
Finally Mr Chairman, the question of Section 34, the Judgment of Judge Hlophe. Judge Hlophe has not given his reason and it is my submission that he may well have exceeded his powers in ruling as he did and that an appeal may be successful.
Once we have an opportunity of being delivered of his Judgment my client will then be able to consider his position and take the matter further if he is so advised.
I'm left in the position where a very senior counsel has provided my client with advice as to his rights and as to the rights of this Commission to insist on him giving evidence without legal representation ...[inaudible] decided that he must follow the advice of that counsel and he will accordingly not be giving evidence before this Commission today.
CHAIRPERSON: Are you able to address us on the question I put to Mr Vally, were we to find that your client's conduct is one of a nature that we should cite him for contempt and deal with him summarily on that basis? Are you able to address us on that?
MR VAN NIEKERK: Mr Chairman, as I sit here now, certainly not able to address you on the question of contempt. It is my submission that the stance adopted by Doctor Basson cannot under any circumstances be regarded as contemptuous of this Commission. He has sought the advice of senior counsel. He had received the advice of senior counsel and if he follows that advice it cannot be in contempt of this Commission.
I am unaware to address you with regard to the powers of this Commission to deal with the matter summarily. I have no doubt ...[intervention]
CHAIRPERSON: What do you think of Section 39(C)?
MR VAN NIEKERK: Mr Chairman, I have no doubt that if this Committee is of the view that in the circumstances Doctor Basson has contravened Section 39(C), the Committee can proceed to formulate an lay a charge against Doctor Basson with the Attorney General who will consider the matter and if he is in agreement with this Commission, Doctor Basson would stand charged with contempt of this Commission and will have to take such steps to defend himself as he may be advised.
CHAIRPERSON: Let me put a pointed question to you Mr van Niekerk, if you are able, or maybe if you want to consider it you can say so. If this Commission, relying on Section 39(C), we are of the view that the conduct of Doctor Basson, whatever it might be when you have left because if we rule for instance against your application for a postponement you will withdraw you have indicated and you will leave and Mr Basson will be asked to take the stand and questions will be put to him. I don't want to anticipate what his conduct is going to be but since you are here and you are his legal representative, I would like to have the benefit of your view. If in those circumstances whatever he does were of a nature that in the opinion of this panel is conduct which if it were done in relation to a court of law would amount to a contempt of court and if in a court of law that conduct would be of a nature that he should be summarily dealt with, as we have seen courts deal with people who are contemptuous of courts ex facie curiae, what do you submit as being the competence or otherwise of this panel, to act as a court of law would act in those circumstances?
MR VAN NIEKERK: Mr Chairman, I have no doubt, on a reading of the Act and of Section 39 in particular, that this Committee is not competent to find any person guilty of an offence or convict him to pay a find or to imprisonment for any period. That is the function of a court of law, not of a Commission established in terms of Act 34 of 1995.
CHAIRPERSON: And is that your view even taking regard of Section 39(C) which in so many words says that any person who does anything in relation to the Commission which if done in relation to a court of law constitutes contempt of court, is guilty of an offence?
MR VAN NIEKERK: Mr Chairman, if we turn over the page, having read 39(C), he then goes on and said:
"Shall be guilty of an offence"
Only a court of law can find Doctor Basson guilty of an offence. Only a court of law can pass sentence of a fine or of a period of imprisonment that is effective. This Commission as far as I am concerned is not vested with those powers and is incompetent to make such a finding.
CHAIRPERSON: Thank you Mr van Niekerk.
Do you have any submissions to make in light of the intervention of Advocate Arendse representing the government, especially as all the authorities you cited were indicated by Mr Arendse to be pre-Constitution days authorities?
MR VAN NIEKERK: No, my submission is I've listened to Advocate Arendse with interest. There is nothing that he has said that makes me wish or feel I ought to alter the submissions that I made this morning on behalf of Doctor Basson. He stands by the submissions that I've made on his behalf.
CHAIRPERSON: Thank you very much, Sir. Shall we take time to consider our ruling? The court will adjourn for 15 minutes. Oh, the Committee will adjourn for 15 minutes. We consider this an appropriate stage to take the tea adjournment. I had said we will adjourn for 15 minutes. We will no reconvene at eleven.
CHAIRPERSON: We are now starting. Can we please get the members of the media clearing up?
This is a further application for a postponement brought by Doctor Wouter Basson through his legal representative, Mr van Niekerk. It is not necessary for me to go through the authorities cited for and against the application for a postponement. It seems clear to me that on a proper consideration of the merits of the application, the panel was entitled to come to the conclusion as it in fact did, that the application for a postponement has no merit and should therefore be refused. The application therefore for the postponement of this matter is refused and that is where we are.
MR VAN NIEKERK: Mr Chairman, I should perhaps place on the record, I made no application this morning for a postponement. Doctor Basson is here. He is without a representative, a legal representative. That is all I put to him. He is therefor, has taken legal advice and he will refuse to give evidence this morning.
CHAIRPERSON: Do I understand that you were not making an application for a postponement in this matter, what application were you making?
MR VAN NIEKERK: I was giving the Commission notice that Mr Basson had taken legal advice as to his position. I read a portion of counsel's opinion into the record. I handed counsel's opinion to the Commission and said that unless he was legally represented, or was represented by a legal representative, he had been advised that he could not be compelled to give evidence. That is different to applying for a postponement.
CHAIRPERSON: What were you wanting from us Mr van Niekerk? What are you applying for?
MR VAN NIEKERK: I'm applying for nothing Mr Chairman. As far as I am concerned, this Commission must take such a course as it in its wisdom may decide. I'm merely placing on record this morning what was done yesterday in an endeavour to obtain legal representation for Doctor Basson and the legal advice that we obtained re the legality of obliging Doctor Basson to give evidence without the assistance of a legal representative.
CHAIRPERSON: Well Mr van Niekerk, I think your job is done. Whatever it was that you were making, now that is clear that you were not making an application, we have noted your submissions. We have also noted the fact that you had indicated that if we were not inclined to take your counsel's advice into account, you would withdraw.
This matter was scheduled to begin at 9 o'clock today. Doctor Wouter Basson is here. He is without counsel and you are not in a position to represent him on what you call the merits of the case and you signified your intention to withdraw in the even we are keen and are ready to proceed. We are now ready to proceed.
MR VAN NIEKERK: As the Commission pleases.
CHAIRPERSON: Doctor Wouter Basson, if you will take the stand. I remind you that you are still under oath.
WOUTER BASSON: (s.u.o.)
MR VALLY: Doctor Basson, how old are you?
DR BASSON: Mr Vally, I was advised legal advisors, both in Pretoria ...[intervention]
CHAIRPERSON: Doctor Basson, could just on a procedural point, even though the questions are coming from Mr Vally you should address the Chair.
DR BASSON: I apologise Mr Chairman.
CHAIRPERSON: Thank you.
DR BASSON: Mr Chairman, I repeat what I said. I have done everything in my power to arrange legal representation for myself, both at the Pretoria Bar as well as the Cape Town Bar. I was unsuccessful in this attempt. I attempted to legal advice as far as possible.
CHAIRPERSON: Doctor Basson? Doctor Basson, did you hear the question that was put to you?
DR BASSON: I did Mr Chairman, I'm busy ...[intervention]
CHAIRPERSON: Are you refusing to answer that question?
DR BASSON: I am trying to put my point of view and to make a statement ...[intervention]
CHAIRPERSON: You must make an application for leave to address the panel.
DR BASSON: Then I ask permission please. As I am not represented by a legal advisor I am not familiar with the proceedings of such a tribunal. I therefore request that the panel affords me the opportunity to make a short statement. ....[transcriber's own translation]
CHAIRPERSON: To what effect? Just to get an indication of what ...[intervention]
DR BASSON: In respect of my status, my willingness to cooperate and the limitations placed on me because of the situation I now find myself in.
CHAIRPERSON: Mr Vally?
MR VALLY: My question was still unanswered Mr Chair. I asked Doctor Basson how old he was. He said he wanted to make representations to the panel.
CHAIRPERSON: I just want to get a sense from you whether you are prepared to stand down your questions subject to his representation.
MR VALLY: I am Mr Chair.
CHAIRPERSON: Mr Basson, can we hear your representation quick.
DR BASSON: Mr Chairman, I thank you and Mr Vally for your affording me this opportunity. As I've said, these last few days I've tried to obtain experienced legal advice for these proceedings. I was willing, showed my willingness to cooperate and I've told the Committee here in what circumstances I am regarding long-term litigation.
I've also tried this morning through the offices of Mr van Niekerk to try to show what attempts I've made to obtain legal assistance. The legal assistance I could obtain went as far as a legal opinion from the advocates from the Pretoria Bar and advocates from the Cape Bar, that it is unlawful to expose me to these procedures without having experienced legal counsel.
I've indicated that to the best my knowledge Advocate Cilliers would be able to be here on Friday ...[intervention]
CHAIRPERSON: Can I just get some clarity? Is that a matter of fact? Is he going to be here tomorrow?
DR BASSON: To the best of my knowledge it is so. I think Mr Vally will be able to confirm this within 15 minutes or an half an hour. This is the last message that I have because Mr Cilliers is in quite a "vloeibare" situation.
Because of this reason I accept the advice given by senior advocates, by legal counsel from the Cape Bar and the Pretoria Bar, not to answer any questions until I have experienced legal advice to assist me in a matter which probably would have far reaching consequences for me and other people, beyond the scope of the Truth Commission.
CHAIRPERSON: You see Doctor Basson, we have made a ruling as a panel and in that ruling we have taken into account what was addressed to us as the legal opinion of senior counsel in Cape Town. I think it is Mr van Schalkwyk. It's an opinion, it's no higher than that. It's an opinion that seeks reliance on an authority which is abetted by other authorities and we have taken those into account, including the authorities Mr Vally himself has quoted to us.
We have also taken into account the submissions that were made by Mr Norman Arendse. And we are unpersuaded by the opinion of your legal counsel. We reject it because it is of no consequence.
Our ruling therefore is that notwithstanding the advice which you got, and I mean you are entitled to follow the advice of your legal advisors but we sit here as panel which must make decisions and ruling, we are unpersuaded on the basis of other authorities that have been cited to us and on the basis of our own understanding of the law such as we are lawyers as we sit here. That there is nothing unlawful about the ruling that we have made to the effect that you can and should appear before us today and answer questions put to you.
Now you have of course options. One of the options is for you to refuse to answer any questions put to you and I think we must get to that stage and I must just say if you do refuse to answer questions that will be lawfully put to you, there are sanctions. Section 39 is a section of the Act that deals with offences and penalties and we are entitled to exercise our prerogative in terms of that section.
So I want you to understand and I want you to understand very well, we do not want to persecute you because you are not even on trial. You are here on an investigative inquiry conducted by the Committee to answer questions.
May I just remark whilst I'm in the course of it, that the authorities that were cited by your lawyer are actually against you. The authorities that were cited to us say that no-one must be placed in jeopardy by a process that contradicts the rules of natural justice by not being allowed an opportunity to be heard.
Now so far from this tribunal not wanting to give you an opportunity to be heard, it is actually wanting to hear you, so I cannot see how those authorities are of assistance to you. They are relevant to a situation where it would be against the rules of natural justice if you were not to be heard. The audi altarem partem rule is in fact not what we are here about.
And to the extent that you were here when it was indicated to you that the right to legal representation is not so ...[indistinct] that it cannot be departed from. We have made our ruling that in spite of the fact that you are not legally represented our ruling is that you should testify. And that is the process that we are busy with.
As I say, you have your options but then also we also have our options and that is where we are at. So I refuse your submission that you are entitled on the strength of that legal opinion not to answer questions and I order you to answer questions put to you legitimately and lawfully by Mr Vally or by anyone of the panel.
As I say if you are of the view that you should refuse to answer questions, do so but you must be aware there are consequences.
DR BASSON: May I address the Chairman on this point please? Mr Chairman, I find myself in this awkward position that I have to handle this procedure without competent legal counsel. It includes that at this stage I am a non-legal person and have to distinguish between your opinion and the opinions of senior counsel.
I am not aware of what the possible sanctions are and because I have not legal assistance in this regard, I ask you to advise me as fully as possible what the sanctions could be so that I could decide what my further attempts should be.
CHAIRPERSON: Mr Vally, do you want to address this particular issue by Mr Wouter Basson?
MR VALLY: Yes, Mr Chair. The sanctions were set out in your Section 29 Notice that was served on you on the 21st of May 1998, however I will repeat them.
We're talking about Section 39 of the Promotion of National Unity and Reconciliation Act, number 34 of 1995, the Founding Act of the Truth and Reconciliation Commission. The relevant sections would be Section 39(E) which says, I'm sorry, yes, Section 39(E) II which reads as follows:
"Any person who having been subpoenaed in terms of this Act without sufficient cause refuses to be sworn or to make affirmation as a witness or fails or refuses to answer fully and satisfactorily to the best of his or her knowledge and belief any question lawfully put to him or her shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment"
Those are the potential sanctions which may be applicable to you Doctor Basson.
CHAIRPERSON: May I just add also Doctor Basson, that we sit here with an Order of Court that has enjoined you in the face of the submissions that were made by your legal counsel before that court, that you should appear here yesterday and by extension on any other subsequent days on which this Committee may have to take evidence from you.
Now we have that Court Order. It has enjoined you. It's an order of court for you to come and appear here and answer all questions lawfully put to you. So quite apart from the provisions of Section 39, and I need to make it very clear that this panel would be very, very slow to want to exercise the provisions of Section 39 and any other lawfully permissible sanctions against you.
This Commission has been premised on the understanding that it seeks to expose the truth about our past only to the extent that it is that is relevant for reconciliation to take place.
We are not persecutors, we are not in the business of wanting to send people to jail because that is not our function but those sanctions were built in that section precisely because those who were doing this legislation were anticipating conduct which might not only put the whole Commission into disrepute but which might cause the whole world to look at the workings of this Commission with contempt and ridicule.
We have a duty to make sure that this Committee ad the Commission are not ridiculed by anyone but we have to weight that, we have to balance that with constitutional guarantees and rights to individuals.
We have to take into account that you are serious when you say you are wanting to cooperate with us and therefore there is a sense in which you should bear in mind that your continued refusal to answer questions may well be a contravention of an Order of Court, of the Cape High Court which ordered you to be here and answer questions.
So quite apart from Section 39 there is a sense in which your refusal to answer questions may well be a contravention of that section.
DR BASSON: Mr Chairman, I have to bother you again but this is a new experience to attempt such a process without legal counsel. I want to comment on two things you have said. Number one, in respect of the question of ridiculing the Commission's activities I want to put it on record that I hold the way in which the Commission has worked in regard and that certain chemical and biological facts were handled by one, two, three medical people in the Investigative Unit. They did that with a lot of trouble.
Then I want to put it clearly that through my actions I do not want to ridicule the Committee or the Commission, so this is not relevant here. What is relevant is that my legal representatives told me that the term: "lawful" entails that it is included that I should have a competent legal advisor or counsel.
I'm in a position now that you have quoted the sanctions but I don't understand how the process works. Can you explain to me what the procedures are to be followed. If you could explain that to me I could consider what to do.
CHAIRPERSON: You know I have duty to say that. I am not your legal advisor Doctor Basson with respect.
DR BASSON: Then with permission, I can't act because I don't myself have the insight to know what is going on and I have no legal counsel to inform me what the steps or procedures following are.
I say again that as far as I know Mr Cilliers will be available here tomorrow. If Mr Cilliers or any other competent legal counsel is not available I want you to explain to me what the legal procedures should be if I follow the legal advice provided by senior advocates.
CHAIRPERSON: You know Doctor Basson, let me again restate what I've stated. We have ruled against your instance to be legally represented at these proceedings. That is a ruling. If we are wrong we are wrong, if we are right of course we remain right but we made a ruling.
We are unpersuaded by your legal opinion that it would be unlawful for you to answer questions put to you. Now that is the position and therefore you find yourself in the position where you should exercise your options and you have two options. The one option is for you to answer questions that are put to you and the other is to refuse to answer questions put to you.
Now your attorney when he represented you, and I'm only talking about what he said, told us that he can't represent you on the merits such as there are merits in this matter, in view of the fact that you are not on trial because you might be prejudiced in your rights. Now how you can be prejudiced in answering a question how old you are defeats me. So that for all your plaintiff cries about how you are really wanting to cooperate with us, I have a sense that you treat us with ...[indistinct] contempt.
DR BASSON: Mr Chairman may I ask, there is a person behind me who is making noises, he is moaning and groaning. Can you ask him to please to keep quiet?
CHAIRPERSON: I've noted your remarks Mr Basson. If there is any person who is putting Doctor Wouter Basson under considerable pain and misery and discomfort by noises that they are making, please be aware that that is not permissible here.
You have an option Doctor Wouter Basson, to answer the questions that are put to you or to refuse to do so. Now that is my final ruling on the issue and I'll entertain no more submissions from you.
Mr Vally, put your question again to Doctor Wouter Basson. He can refuse if he wants to.
MR VALLY: Doctor Basson, can you tell us what your age is please?
DR BASSON: Mr Chairman, I cannot answer any questions at this stage until you can distinguish ...[intervention]
CHAIRPERSON: You are bordering dangerously on contempt, Doctor Wouter Basson. You can't demand anything of me in the light of the ruling that we have made. I have told you that you know have a choice. You either answer the questions lawfully put to you, and I tell you that question are lawfully put to you unless we rule them to be so. You either reply to the questions put to you or you exercise your options to refuse to do so.
And you can't say to me that you will not answer questions until I have told you what the sanctions are. If you refuse to answer the question say so, you are perfectly entitled to do that. Will you please answer the question or will you please exercise an option to refuse to do so.
DR BASSON: I told you clearly Mr Chairman, that I received instruction and advice not to answer any question ...[intervention]
CHAIRPERSON: Don't tell me about that again. With due respect, you are veering on dangerous grounds Doctor Wouter Basson.
DR BASSON: In the light of legal advice given to me, I cannot at this stage answer questions without experienced legal advice. ...[transcriber's own translation]
CHAIRPERSON: You therefore refuse to answer the question that was put to you?
DR BASSON: I repeat my answer. In the light of legal advice given to me, I cannot answer the questions without experienced legal assistance. ...[transcriber's own translation]
CHAIRPERSON: Mr Vally, do you have any other question to put to Doctor Basson?
MR VALLY: Doctor Basson, what are your academic qualifications?
DR BASSON: I repeat my previous answer. In the light of legal advice given to me, I cannot answer questions without having experienced legal because I cannot distinguish between questions which have no implications for me and questions which have far reaching implications for me. ...[transcriber's own translation]
And this court also did not indicate to me in which manner I could indicate which questions are difficult for me. ...[transcriber's own translation]
CHAIRPERSON: Doctor Basson, I will not have to warn you again. I will not have to warn you again. You are bordering on contempt of these proceedings. I've given you options which you in my view are entitled to ...[indistinct]. You can refuse to answer questions put to you but don't argue against a ruling that we have taken time to consider. I won't have to say that again. Let the record show that Doctor Wouter Basson refuses to answer this question as well.
Mr Vally, do you have any other question?
MR VALLY: Are you prepared to answer any question no matter how innocuous, which I put to you?
DR BASSON: Yes, if the Commission can give me the opportunity to distinguish between questions which have no implications for me and questions which do have implications for me, then I will be prepared to answer basic questions. I with my limited legal background, with no legal background, will be prepared to answer them if they have no implications for me.
CHAIRPERSON: Let the record show that Doctor Wouter Basson refuses to answer that question as well.
Mr Vally, if you could ask questions on the merits. I don't think you must be in contest with Doctor Wouter Basson about whether or not he is entitled to answer any questions. We have ruled that he is here to answer questions and if he doesn't want to answer questions he can refuse to do so.
MR VALLY: Doctor Basson, can you tell us when you joined the South African Defence Force for the first time.
DR BASSON: I repeat my answer again. I cannot answer that question the based on legal advice.
CHAIRPERSON: Let the record show that Doctor Wouter Basson refuses to answer this question as well.
CHAIRPERSON: Mr Vally, go ahead.
MR VALLY: Mr Chair, I need some direction from you, I have a long, long list of questions.
CHAIRPERSON: Put them. Put them to Doctor Wouter Basson and let him refuse each and every question. And each and every question carries with it the implication of the invocation of the provisions of Section 39(C). Each question carries with it as an own question the implications that we can evoke in respect of each question he refuses to answer of the provision of Section 39.
MR VALLY: As the Chairperson pleases.
Doctor Basson, what was your rank when you finally left the Defence Force.
DR BASSON: The answer to that is the same as the previous one. I cannot answer that question as I don't have experienced legal representation.
CHAIRPERSON: Carry on Mr Vally.
MR VALLY: Mr Chair could I make an application?
CHAIRPERSON: Very well.
MR VALLY: Mr Chair I appreciate your ruling and I'm not going contrary to it, my application is that on behalf of the Commission we consider our rights both in terms of Section 39, in terms of the order of Justice Hophe regarding this matter. I have been, I have noted what Dr Basson has said about the availability of Advocate Cilliers tomorrow. My request is that the Commission reserves it's right and makes a determination as to whether to lay criminal charges or to bring an application for contempt of court, but pending that decision that we order Dr Basson to be here at an early hour tomorrow morning with his counsel in order that we may resume this questioning. Thank you Mr Chair.
CHAIRPERSON: Where do we get hold him between now and then?
MR VALLY: I believe that Dr Basson could possibly contact Advocate Cilliers through his attorneys but we do have the (...intervention)
CHAIRPERSON: No I'm talking about his physical person, where do we get Dr Wouter Basson between now and tomorrow if we're now inclined to do go that direction? Dr Wouter Basson you're on the stand, can you take the stand please.
DR BASSON: That is correct Mr Chairman.
CHAIRPERSON: Did you hear the application that is being made by Mr Vally?
DR BASSON: I've heard that yes.
CHAIRPERSON: Where are you going to be contactable if we were inclined to go that route, between now - are you contactable at short notice?
DR BASSON: Yes Mr Chairman, I am available and you can reach me through the people who are protecting me and on a full time basis they have contact with your office.
CHAIRPERSON: Mr Vally can I hear you further?
MR VALLY: Thank you Mr Chair, what we will do is get the telephone numbers of the members of the NIA who are presently looking after Dr Basson, should we need to exercise any of our rights either in terms of Section 39 or in terms of making an application for contempt of court. However, from our point of view in terms of leading evidence and obtaining information from Dr Wouter Basson, that aspect I would request that an order be made instructing Dr Wouter Basson to be here tomorrow morning with his advocate, Advocate Cilliers as undertaken by Mr Adolf Malan who indicated that Mr Cilliers was available on Friday, so that if we need to exercise our options we can get access to Dr Wouter Basson today; alternatively we'll continue tomorrow morning with Dr Wouter Basson being represented by Advocate Cilliers and at that stage we will not make any other concessions if he refuses to answer any questions.
Thank you Mr Chair.
CHAIRPERSON: Dr Wouter Basson do you have anything to say to this application?
DR BASSON: I have nothing further to say than except what I have already said this morning.
MR VALLY: Sorry Mr Chairperson, there is one thing I wanted to add, there seems to be a contradiction here now. We've had this letter from Mr Malan indicating that Advocate Cilliers is available tomorrow. We were told yesterday by Mr van Niekerk that Advocate Cilliers was available tomorrow. I would request before any ruling is made that Dr Wouter Basson gets confirmation, emphatic confirmation that Advocate Cilliers will represent him here tomorrow morning and that we stand this matter down for a few minutes in order that we can get that assurance (...intervention)
CHAIRPERSON: Well I don't know what emphatic confirmation would amount to when we deal with this particular witness.
MR VALLY: I appreciate (...intervention)
CHAIRPERSON: I was aware, he said here under oath that to the best of his knowledge that is the position. Is that the position?
DR BASSON: That is correct Mr Chairman. At this stage I can't confirm that but that was how it was conveyed to me that Mr Cilliers will be available tomorrow morning.
CHAIRPERSON: In other words only an act of God will make it impossible for him to be here, he will either have met with an accident or something like that?
DR BASSON: As far as I know yes.
CHAIRPERSON: I don't think we need any further confirmation of that fact.
MR VALLY: Thank you Mr Chair.
CHAIRPERSON: However I think we need to stand this matter down for a few moments. We'll stand this matter down for five minutes, stand it down for five minutes.
CHAIRPERSON: Mr Vally can I understand you clearly, what order are you requesting from us?
MR VALLY: The primary ...(intervention)
CHAIRPERSON: That is proceedings ...(intervention)
MR VALLEY: ..order that I'm requiring Mr Chairperson is that Dr Wouter Basson appear before us tomorrow at 8:30 a.m., he said that his advocate would be available, be prepared to sit after hours.
Secondly, that the Commission reserves its rights in terms of the order granted by Justice Hophe to move an application for contempt; and that further the Commission consider its legal position regarding laying a criminal charge in terms of Section 39.
R U L I N G
CHAIRPERSON: This is a matter that has weighed heavily with us as a panel for a variety of reasons. One of the reasons why this matter has been one that has weighed heavily with us is the fact that we are running against time.
We also operate in a constitutional democracy, a democracy that accords people rights and that accords people freedoms. In a constitutional democracy of that type it is very easy for people to abuse the process of court, to abuse the invocation of those rights at tribunals at which they appear and in living memory I must say I have not encountered a process, in which in my prima facie view, rights have been abused as they have been by the applicant, I mean by the witness in these present proceedings. I say so advisedly taking into account everything that he has said in protestation of his rights, such as he has been advised about by his legal advisors.
We have painfully weighed our options. I must say all of us have been tempted, tempted and we have had to resist the temptation to summarily deal with this present witness in what we perceived will be a way that will demonstrate to all and sundry that these proceedings and this process of the TRC is not to be treated idly.
I did address or I did ask for an address by Dr Wouter Basson's legal representative as it then was, Mr van Niekerk, about what his attitude is or should be in the event it became necessary for us to summarily deal with Dr Wouter Basson in the way in which a court of law would deal with him if it felt he was contemptuous ex facie curiae. He has submitted that it is not competent for us to do so. I am not so sure that it is not, it is a matter however in relation to which we need to exercise our minds.
It has never been the attitude of this Commission to be sensationalist; to seek to do things that might be perceived to be contrary to its mandate, but I must say we have resisted with difficulty having to go to the extreme end of dealing summarily with what we perceive to be an unhelpful conduct on the part of this present witness.
Your conduct Dr Wouter Basson has been very disrespectful of this Committee and that is so notwithstanding the fact that you have been protesting your preparedness to be co-operative. Our inclination has been, notwithstanding Mr Vally's application to refuse his application, to cause you to answer questions which are put to you by any means at our disposal including immediate application of sanctions. But these are heavy matters. We have to look at the broader picture. We have to look at what this whole exercise is intended to achieve.
And let me say were I sitting other than in this tribunal, I would never have hesitated to deal with, with what I perceive, rightly or wrongly, as a conduct which is intended to be disrespectful of that process, I would not have hesitated to deal with you with that conduct in what I perceive to be the legal position to do so.
I am only hesitating to act in what I would consider to be acting in terms of Section 39© only because it is a matter in relation to which much more research should go, and therefore it is in that light that I think the application by Mr Vally that the Commission should consider its options, not only to lay criminal charges in terms of Section 39 of the Act, but to look at what competencies this Commission has to deal with conduct that may amount to contempt of its proceedings, ex facie curiae. This process and all the other processes of the Commission would be rendered inoperable if the Commission did not have the power and the competence to deal with conduct that is obstructionist and, in the view of the panel, may well be amounting to a contempt of its proceedings.
We have, however, decided for all the reasons that I have stated, but also in particular for the reason that we want to be as fair as circumstances allow, that our own personal angers should not cloud the issues. That we must be seen to be the people who were appointed for the very reason that we are able, even in the face of our own emotional directions, or predilections, to apply our minds to situations to endeavour to arrive at a balance.
We have been able, on that basis, to consider your application Mr Vally very favourably, and we therefore order in the following way:
That these proceedings will be adjourned to half past eight on Friday the 31st of July 1998 in this room;
that we will receive evidence on that day from Dr Wouter Basson, who on his own evidence under oath will be represented by Advocate Cilliers;
that we will sit and put questions to Dr Wouter Basson about his involvement or otherwise in the matter that has been the subject matter of these proceedings from the time that they started on the 6th of June until such time up to and including 12 midnight, the 31st of July 1998, as we will have taken evidence of a nature that is sufficient for us to be satisfied that we have discharged our mandate in terms of the Act.
We also rule that this Commission reserves its right in bringing an urgent application in the High Court for an order which would determine why the conduct of Dr Wouter Basson, amongst other things, should not be considered to be one that was amounting to a contempt of that order, or any such relief as it may be competent for the Commission to seek. We will reserve our right to go in that direction.
We, however, make no ruling in relation thereto, except only that we reserve our right.
We also reserve our right to consider our options as a Commission whether or not to lay criminal charges in terms of Section 39 of the Act.
These proceedings are adjourned until half-past eight tomorrow morning.