Special Hearings

CHAIRPERSON: The time is five past nine. This matter was supposed to have started five minutes ago. We are now ready to start.

Mr Vally, can you call the witness?

MR VALLY: Thank you Mr Chairperson. The witness is Doctor Basson. We had been told by his attorney that he as taken the six thirty a.m. flight from Johannesburg, so he may be slightly late this morning but I believe he will be represented by his local correspondent.

CHAIRPERSON: You need not stand but you need to put yourself on the record properly.

CHAIRPERSON EXPLAINS MICROPHONE TO COUNSEL

MR VAN NIEKERK: I don't know whether the red button is working or not. My name is van Niekerk. I'm from Silberbauers Attorneys of Cape Town and I appear on behalf of Doctor Basson.

My instructions were only received by me late yesterday afternoon, after 5 o'clock and again early this morning. I understand that Doctor Basson left Johannesburg at six thirty this

morning by plan for Cape Town and he should therefore be arriving shortly. I wonder if the Committee could adjourn until such time as he arrives, which hopefully will be in the next 10 or 15 minutes.

CHAIRPERSON: Mr Vally?

MR VALLY: We don't have any objections to waiting for the short while Mr Chair.

CHAIRPERSON: Do you have any instructions as to why Mr Basson was not able to be here at the appointed time? Were there no flights yesterday, for instance? Couldn't he have stayed overnight so that he can be here on time? Do you have any instructions in that regard?

MR VAN NIEKERK: Mr Chairman, I have no instructions. As I said earlier, I received an instruction last night that I should appear on behalf of Doctor Basson this morning. I have not met Doctor Basson yet, I have not spoken to him as yet. I've taken no detailed instructions from him as yet and I hope to receive further instructions from him as to why he is arriving here late this morning. I will then report to you once I have those instructions.

CHAIRPERSON: Thank you Mr van Niekerk.

Advocate Potgieter?

ADV POTGIETER: Mr van Niekerk, will you indeed be acting on behalf of Doctor Basson? Have you accepted instructions because it looks as if you haven't been given any information at all.

MR VAN NIEKERK: I will be acting on behalf of Doctor Basson today. Sorry, I should have pressed the red button.

ADV POTGIETER: It is on.

MR VAN NIEKERK: Oh, it is on.

I will be acting on behalf of Doctor Basson today and I understand that thereafter it's highly likely that Advocate Cilliers will take my place.

ADV POTGIETER: Thank you.

CHAIRPERSON: Well it doesn't appear that there's going to be any much use in us staring at each other here in the absence of Doctor Basson. I think we have placed on record all that needs to be placed on record at this stage.

I may just indicate that we are increasingly, as a panel, we are increasingly getting the impression that Doctor Basson takes a very cavalier approach to these proceedings, an approach that concerns us greatly but you are the messenger and I've no reason and no business to be flogging the messenger.

We will adjourn until such time as the witness has made an appearance. We will adjourn.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Vally, I believe we are ready to start.

MR VALLY: I am Mr Chair.

CHAIRPERSON: Thank you. We'd like to start now. Can we please have members of the press away from the witness?

Mr van Niekerk? Mr van Niekerk, have you taken any instructions on the witness's appearance at this hour, rather than 30 minutes ago?

MR VAN NIEKERK: Yes, Mr Chairman. Doctor Basson has asked me to apply for a postponement of this matter ...[intervention]

CHAIRPERSON: That is not the question I'm asking you. Have you taken instructions as to why he appears at half past nine, rather than at 9 o'clock?

MR VAN NIEKERK: Mr Chairman, as I explained to you earlier he left this morning at approximately 06H30.

CHAIRPERSON: Yes, Mr van Niekerk, and I asked you a question as to why he left this morning when he knew that there is a probability that he might not be here at nine, and I think that was the instruction that you were going to get from Mr Basson.

MR VAN NIEKERK: Yes.

CHAIRPERSON: Why didn't he arrive yesterday so that he could appear here to be on time for today's proceedings?

MR VAN NIEKERK: I'm instructed by Mr Basson that the Judgment of Judge Hlope was given on Monday, that he was busy yesterday and he caught the first available flight this morning.

CHAIRPERSON: When you say he was busy, what do you mean? Do you have any detail?

MR VAN NIEKERK: My instructions are that he had other work to do.

CHAIRPERSON: Is that all that you have Mr van Niekerk?

MR VAN NIEKERK: That is all I have Mr Chairman. May I point out Mr Chairman, that under normal circumstances to subpoena a witness or direct at a witness: Attend Court, 48 hours and maybe less is a very short period ...[intervention]

CHAIRPERSON: Now where do you get that from, that he was subpoenaed 48 hours? Papers were served on, certainly on Mr Basson's lawyers 14 days ago and in which it was clear that we would seek an Order of Court for him to appear before this tribunal on the 29th, where does this come from that he got 48 hours notice? That was notice, kindly take notice, that we will seek an order for him to appear before us on the 29th.

MR VAN NIEKERK: Mr Chairman, ...[intervention]

CHAIRPERSON: That was 14 days ago.

MR VAN NIEKERK: With great respect to you Mr Chairman, that was a Notice of Motion that was served on ...[intervention]

CHAIRPERSON: Yes, so he had noticed that there was a very great likelihood that if we succeed on that Notice of Motion, he would have to appear before us on the 29th. Any prudent person - and let me say Mr van Niekerk, any person who does not suggest to us disrespectfulness, and I want to put this thing on the table, any person who was not showing to this panel a measure of disrespectfulness which I commented upon before and which I want to comment upon at this stage, would have made provision for an eventuality such as it has come about, that on this day he would have to appear before us and would have acted accordingly.

MR VAN NIEKERK: I take ...[intervention]

CHAIRPERSON: So this thing about him having been given 48 hours notice, it just does not gel. And you say: "under normal circumstances", and indeed under normal circumstances. These are not normal circumstances and may I add, they are not normal circumstances brought about by the panel or by anyone as was argued in Court. They are normal circumstances which have been brought about by a lackadaisical and cavalier approach by this particular witness, both to the question of him bringing an application in Court virtually in July when they had made an undertaking on the 12th of June that they would bring an urgent application to seek the relief that they wanted to get in Court.

I am not persuaded and I speak on behalf of this entire panel, I am not persuaded that this witness has been dealt with unfairly. I am still wanting to know why Mr Basson did not arrive here yesterday and I am not prepared to take his explanation that he had things to do. Which again points Mr van Niekerk, again points to an increasing awareness on the part of the panel that there is a sense in which Mr Basson thinks that he can deal with us as and when he likes.

Do you want to take further instructions to get details as to why Mr Basson was busy with other things when he had a commitment with us today?

ADV POTGIETER: Or do you want to lead his testimony Mr van Niekerk, on this issue?

MR VAN NIEKERK: Mr Chairman, I've been asked a question and it would appear that the Chairman himself wants me to provide an answer. I met Doctor Basson and have spoken to Doctor Basson for the first time this morning when I met him at the escalator. I'm afraid that without taking further instructions I'm not able to provide any answers of the nature of the questions that have been put to me.

May I also say that the Chairman suggests that Doctor Basson had notice that he should appear here today. The first official instruction, whether it be by way of subpoena or by way of Court Order, was issued on Monday, not when the Notice of Motion was served upon Doctor Basson. Mr Chairman, I would very much like to take instructions and I may be able to give you fuller answers and thereafter deal with such other matters as Doctor Basson will instruct me ...[intervention]

CHAIRPERSON: Will you lead evidence after you have taken instructions on this particular issue?

MR VAN NIEKERK: No, I will lead no evidence today whatsoever. My instructions ...[intervention]

CHAIRPERSON: On the issue of why Mr Basson was not able to be here at 9 o'clock. Will you take instructions and lead his evidence because it might be very important and very critical for us to have under oath what he says in that regard.

MR VAN NIEKERK: Mr Chairman, I'll have to take instructions from Doctor Basson.

CHAIRPERSON: I'll give you five minutes Mr van Niekerk, to take instructions.

These proceedings are adjourning for five minutes to enable Mr van Niekerk to take instructions from his witness. We are adjourned.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr van Niekerk?

MR VAN NIEKERK: Mr Chairman, thank you. Yes, I've indeed had an opportunity of taking instructions from Doctor Basson. I have also had an opportunity of reading the Notice of Motion which you referred to when speaking to me earlier. The position is Mr Chairman, that Doctor Basson was busy at the Pretoria Academic Hospital until after 6 o'clock last night.

I must also place on record that the Notice of Motion that was issued by this Commission's attorneys asked for an order as referred to by you in the following terms Sir, and in view of your accusation that Doctor Basson is adopting a somewhat cavalier attitude towards this Committee, perhaps it is just as well that I read the relevant portion of the Prayers of the Notice of Motion and place same on the record.

There was a counter application filed in this matter and the Notice of Motion is dated the 14th of July, as referred to by you. The second Prayer in that Notice of Motion says as follows:

"That the applicant be directed to appear before the Respondent"

that is this Commission.

"on Wednesday the 29th of July 1998 and to answer all questions lawfully put to him"

Now Mr Chairman, I am instructed that the Order of Mr Justice Hlope is to the effect that:

"That the applicant be directed to appear before the Respondent on Wednesday the 29th of July 1998 and to answer questions lawfully put to him"

Doctor Basson was here at 09H15 this morning Mr Chairman. There was not time stipulated, either in the Notice of Motion nor in the Order of Court, that Doctor Basson should be here at 9 a.m.

A letter dated the 27th of July was forwarded to Doctor Basson's Pretoria attorneys, Messrs Adolf Malan and Vermeulen and he was requested before the Human Rights Violations Committee on Wednesday the 29th of July 1998 commencing at 9 a.m. on the 10th Floor and so on. That was merely contained in a letter and the contents of that letter were passed on to Doctor Basson yesterday at about midday.

I submit under the circumstances that Doctor Basson is neither a cavalier attitude in arriving here at 09H15 nor in any way showing disrespect to this Committee.

CHAIRPERSON: Mr Vally?

MR VALLY: On this issue Mr Chair, having obtained the order on the 27th of July, thereafter we did send that letter to Doctor Basson's attorneys advising him that we would be commencing at 9 a.m. on Wednesday the 29th of July 1998. We also undertook to make whatever transport arrangements had to be made, should Doctor Basson require it. So as soon as we were aware of the Order that was granted, we drafted a letter and forwarded it to Doctor Basson's attorneys. Thank you Mr Chair.

CHAIRPERSON: I think the question still remains Mr van Niekerk, why Doctor Basson, knowing that he had to appear before at 9 a.m. today, he did not. I've heard all you've said about his commitment at the hospital until 6 o'clock you said. It still doesn't answer my question as to why he could not be here last night. Are you instructed that there were no flights available last night?

MR VALLY: Mr Chair, with your permission, could I just intervene here. In connection with another issue, there was a telephone call from Mr Adolf Malan, the attorney for Doctor Wouter Basson yesterday at about six twenty five p.m. where he did indicate to me that Doctor Basson would be leaving Johannesburg International Airport at 06H30 this morning. When he advised me of this I did not strenuously object or insist that he leave earlier. Thank you Mr Chair.

ADV POTGIETER: Mr Vally, did he give you a reason for that?

MR VALLY: No, he did not and nor did I enquire.

CHAIRPERSON: Other than the reasons that we are given Mr van Niekerk, do you have any other reasons why Mr Basson could not have taken an available flight yesterday from Johannesburg to Cape Town so that he could be here at nine?

MR VAN NIEKERK: Mr Chairman, Doctor Basson was not called upon to be here at nine, either in the Notice of Motion drafted by your attorneys, nor in the Order of Court. My instructions are that he was busy until after six at the Pretoria Academic Hospital.

CHAIRPERSON: Other than that?

MR VAN NIEKERK: I have nothing further to add to that.

ADV POTGIETER: So Mr van Niekerk, are you saying that he arrived at 09H15 deliberately because he was not supposed to have been here at 9 o'clock?

MR VAN NIEKERK: What I'm saying, as I understand my instructions Mr Chairman, are that Mr Basson endeavoured to be here as early as possible this morning and he had work to do yesterday. He was only informed of this letter yesterday at midday.

ADV POTGIETER: So is his attitude that he was under no obligation to be here at 9 o'clock this morning?

MR VAN NIEKERK: I think I - if you'll excuse me. I'm instructed by Doctor Basson that his attitude was to be here as soon as possible today, having regard to the constraints that were placed upon him by his workload of yesterday.

ADV POTGIETER: But what was his state of mind, was his understanding that he was obliged to have been here at 9 o'clock but through circumstances beyond his control he couldn't make it or is his attitude that he was not obliged to have been here at 9 o'clock, he's doing us a favour to be here at 09H15? That was the earliest?

MR VAN NIEKERK: Mr Chairman, Doctor Basson instructs me that he had sensitivity for the workload of this Commission. The Order of the Court requires him to be here today. He made it his business to be here as early as possible today, and as I've said he had a busy workload yesterday which carried on until after 6 o'clock.

ADV POTGIETER: So in other words there was no obligation upon him to be here at 9 o'clock, there was no time specified? It's a very important - can I perhaps just Mr van Niekerk, for the benefit of your client, refer you to Section 39. Perhaps I should quote Section 39(C) under the heading

"Offences and Penalties"

MR VAN NIEKERK: Could you just bear with me Mr Chairman, I'd just like to relevant document.

ADV POTGIETER: Certainly.

"Any person who"

and sub-section (c):

"does anything in relation to the Commission which if done in relation to a court of law would constitute contempt of court"

and then right at the end:

"shall be guilty of an offence"

and then they provide for the consequence of that.

It's not for an idle reason that we're engaging in this debate. As you can well appreciate there are obvious consequences which could flow from this situation, where Doctor Basson walks in here at, whether it's 09H14 or 09H20 under circumstances where he has been notified through his attorneys that these proceedings would commence today at 9 o'clock.

Obviously there are the real prospects of consequences flowing from that, and I mean we are giving you an opportunity, we have suggested earlier as well that you might consider whether he shouldn't be testifying and putting his case before us on that issue. That is the purpose why we are giving this opportunity, to hear what the ostensible reason is for this situation.

One assumes that you can't take it any further and your client doesn't want to add anything to what has been placed on record.

CHAIRPERSON: Before you reply Mr van Niekerk, I would like to get clarity on the question or whether your client persists, and this is how I hear him, persists in the attitude that he did not have to be here at 9 o'clock and therefor owes us no apology. Because he was here at a quarter past nine he could have been here at 5 o'clock because all that was indicated was that he should appear before us on the 29th.

I haven't heard that coming through, all that I'm hearing is an argumentation that says: "I was not ordered nor subpoenaed by anyone to be here at nine and therefore you cannot take the point that I am contemptuous of these proceedings by not having been here at nine". Is that your client's attitude?

MR VAN NIEKERK: Mr Chairman, I am instructed that Mr Basson acted strictly in terms of the Order of Court and in accordance with discussions that his attorney in Pretoria had had with your legal advisor in this Commission, Mr Vally.

It's been drawn to my attention, the provisions of Section 39(C) by Advocate Potgieter. My answer to Advocate Potgieter ...[intervention]

CHAIRPERSON: Mr van Niekerk, are you through with the pointed question that I'm asking?

MR VAN NIEKERK: I am through with that.

CHAIRPERSON: Is your client's attitude that he owes us no apology because we didn't subpoena him to be here at nine? Is that his position?

MR VAN NIEKERK: My client instructs me that if you wish him to tender an apology he will do so.

CHAIRPERSON: No, I cannot select anything for your client but I want to hear what he says, I want to know what his state of mind is, I want to know what his attitude is because the argument as advanced by you is that there was no obligation on him to be here at 9 o'clock.

Now if that is your argument, I want to know what the sub-text is. Is the sub-text therefore that he doesn't have to apologise for having been here at 09H15, actually he did us a favour because we never specified the time at which he should have been here? Is that the inference that must be drawn from his attitude?

MR VAN NIEKERK: There's no question of him suggesting or any inference being drawn that he is doing this Commission a favour. He has a duty to be here today. He was given very short notice of the time by which he had to be here today and he used his best endeavours to be here on time. He cannot take the matter further, nor can I.

CHAIRPERSON: Thank you Mr van Niekerk. You wanted to talk on Section 39(C).

MR VAN NIEKERK: Yes. Mr Chairman, insofar as Section 39(C) is concerned, that states that any person who does anything in relation to the Commission which is done in relation to a Court of Law, would constitute contempt of court.

Now Mr Chairman, with great respect, indeed my client had been subpoenaed or ordered by Judge Hlope to be here at 9 a.m. and he had wilfully not been here at 9 a.m., there may be an argument that he is in contempt of this Commission. That is not the case however. Neither the Order nor the Notice of Motion required him to be here at 9 a.m.

There is a letter which was handed to him. It's accepted practice that a witness who is to testify in proceedings be given reasonable notice as to when he is required to be in court.

CHAIRPERSON: Is your attitude Mr van Niekerk, if I hear you well, that if a witness is represented by an attorney or by counsel and communication is done through his or her counsel or attorney, that is of no consequence? We are not to regard it as legally binding on a person represented by a lawyer, to serve notices on his or her lawyer, we should do more. Is that how the argument should be understood? We should have done more, we should have issued a subpoena over and above dealing with a particular witness through legal representatives who have been representing him. Are you saying no weight should be given to communications between the attorneys?

MR VAN NIEKERK: I am saying exactly the opposite. A letter was received by Messrs Malan and Vermeulen requesting that Doctor Basson be here at 9 a.m. today. Notice was indeed taken of that letter and then a subsequent telephonic conversation between Mr Vally and Mr Malan in which Mr Malan explained that it was not possible for his client to be here at 9 o'clock precisely and that he may be a few minutes late.

As I understand the position, notice of that fact was taken by this Commission's legal advisor and no objection was raised. That is I understand what Mr Vally has told the Commission himself this morning.

CHAIRPERSON: And as I understand your argument therefore, it would not be competent for this panel to take the view that your client's conduct is in contravention of Section 39(C)?

MR VAN NIEKERK: Indeed that is my submission to you.

CHAIRPERSON: I see. You indicated - we'll reserve our judgement on this point. We'll certainly have to decide upon it. You indicated that there was another issue that you wanted to place on record and you had began to move an application in that direction when I interrupted you. If we can have that application now?

MR VAN NIEKERK: As the Commission pleases.

Mr Chairman, my instructions are this morning to apply for a postponement of this matter. I must place ...[intervention]

CHAIRPERSON: To what date?

MR VAN NIEKERK: I beg your pardon?

CHAIRPERSON: To what date?

MR VAN NIEKERK: To a date suitable to this Commission. If I may just explain why the application is being made and at the same time I will also refer the Commission to the papers that were filed on behalf of Doctor Basson in the proceedings in the Cape High Court.

The reason why the application for a postponement is being made is that in terms of the Act, Doctor Basson is entitled to have legal representation here today.

CHAIRPERSON: Which he has in the person of yourself?

MR VAN NIEKERK: Indeed he has it in the person of myself for today. I certainly have not been able to take instructions sufficient to enable me to protect the interests of Doctor Basson. I received my instructions yesterday afternoon ...[intervention]

CHAIRPERSON: Can you just articulate that? Can you just expand on that? What interests would you be protecting incidentally because Doctor Basson is here to answer questions that will be lawfully put to him. You are a tried and tested attorney. I've not sought to find out what your pedigree is but I take judicial notice that you have been in the legal profession for quite some time. All that you need to do really is to make sure that questions are put to him in a fair and lawful manner.

Doctor Basson is protected by the Act and in fact especially by the Act, Section 31(3), that anything that he says here will not be used against him at any tribunal or court of law and that was what in fact was found to be the position by even the High Court in the application that he himself brought and in relation to his counter-application which was brought. What is it that he must now be protected against?

I'm not saying he must not be represented because you might have matters of clarification, you might want to put questions to him in clarification, in which case you could take instructions as we hop along. I just don't understand, I would like to have some clear argument on what it is that he needs that sort of protection from you when he is here to answer questions that are lawfully put to him.

MR VAN NIEKERK: Mr Chairman, he is no doubt entitled to the protections that were envisaged by the lawmakers when Section 34 of Act 34 of 1995 was brought into effect. Parliament saw fit to entitle a person who is to be questioned by an investigation unit, to have the benefit of a legal representative.

Doctor Basson for some months now has received various papers and documents. He has consulted with legal representatives in the Transvaal, in Pretoria. When he was called upon yesterday at midday to appear neither of those gentlemen were available to appear before this Commission today ...[intervention]

CHAIRPERSON: Can you just place it on record who are these legal representatives. Adolf Malan who is au fait with the case, Mr van Zyl, Mr Piet de Jager?

MR VAN NIEKERK: I don't know if I ...[intervention]

CHAIRPERSON: Mr Cilliers?

MR VAN NIEKERK: Advocate Cilliers I think, yes.

CHAIRPERSON: Oh, Advocate Cilliers and in his matter in the Supreme Court two counsel appeared, Advocate van Zyl and Advocate Piet de Jager. We're talking about four legal representatives in the Transvaal, as it then was known, who are competent and who are au fait with all the issues in this matter. Are your instructions that none of them are available?

MR VAN NIEKERK: My instructions are that his legal representatives are not available to be here today. I have no knowledge as to who his legal representatives are nor as to the number. I do know about Mr Malan and I do know about Mr Cilliers. You will bear in mind Mr Commissioner, that my instructions came in partly late yesterday afternoon, after 5 o'clock and thereafter this morning as I was on my way to this Commission. I'm very sorry, if I'd had more time I could perhaps have found out the names of the various legal representatives. I don't know who they all are, you know more than I do.

CHAIRPERSON: Mr van Niekerk, please don't get the impression that there is any hostility by this panel against you as a person. If it has come across as that, please be assured that we are vigorous and rigorous in our endeavour to try and protect the integrity of this process.

MR VAN NIEKERK: I'm grateful to hear that.

CHAIRPERSON: And please, if you are able to relax whilst we put questions to you. You have taken upon yourself a task of having to represent the interests of Doctor Wouter Basson. May I add, we also do not want to deal with Doctor Wouter Basson very unfairly, we were just concerned about what it does to this process and to the integrity of this process. Do you have any instructions as to whether there were any attempts by Doctor Wouter Basson when his attorneys were not available, to appoint other legal representatives other than yourself?

Section 39(C) applies also people who are in the audience. Anyone who does anything in relation to the Commission which if it were done in a court of law would constitute a contempt of court, they will be guilty of an offence. A cellphone ringing in this Commission might constitute contempt of court. So people be warned. I am not in the happiest of moods this morning.

Mr van Niekerk?

MR VAN NIEKERK: Yes, thank you Mr Chairman. My instructions are that General Kaiser of the, Colonel Kaiser of the Defence Force has instructed that new or fresh legal representation should not be provided for today's proceedings in the event of Doctor Basson giving evidence.

My brief is purely and simply to apply to this Commission for a postponement. I have no instructions ...[intervention]

CHAIRPERSON: To what date? Because that is critical to our decision. We have until Friday in terms of the law and all layers including those who have been representing Mr Wouter Basson are aware of this. That is the legal position.

Even if we were inclined to grant a postponement, and I must say speaking for myself, at this stage unless I get persuaded by you, I'm disinclined to grant a postponement. I would persuade very vigorously my panel members to think likewise, but assuming that we were inclined in that direction, is it clear to you that it would have to be a postponement to either today or tomorrow, certainly not beyond the 31st. Is that very clear to you?

MR VAN NIEKERK: That is absolutely so.

CHAIRPERSON: Are you applying for a postponement on that basis?

MR VAN NIEKERK: On that basis.

CHAIRPERSON: Now can you take instructions as to when those lawyers would be available before us if we were to be inclined to grant a postponement? I'm not saying we would.

MR VAN NIEKERK: Mr Chairman, as I understand my brief, I'm to a large extent in the hands of the Commission as to whether they wish to postpone this matter until tomorrow or until Friday. That depends on the Commission.

I understand my brief to be that the Transvaal legal representatives are available either tomorrow or on Friday.

CHAIRPERSON: Mr Vally?

MR VALLY: Thank you Mr Chair. Just for the record, I want to put our views across the whole issue of legal representation. Firstly, as has been pointed out by the Chairperson, that as at the 14th of July when our application or counter-application was served on Doctor Basson's legal representatives, it was clear that we were asking for an Order instructing Doctor Basson to appear before us today on the 29th of July.

Secondly, when this Order was granted in the Cape High Court by Judge Hlope on the 27th of July 1998, he was aware of the arguments put forward by Doctor Basson's legal representatives to the effect that those specific advocates were not available today. Being aware of those arguments, he gave us an Order instructing Doctor Basson to be present here today.

Thirdly, we returned a phone call to Doctor Wouter Basson's advocate yesterday at six twenty five p.m. specifically from Mr Adolf Malan. He advised us as to what Doctor Wouter Basson has instructed his attorney presently, that the counsel, and I refer to all three counsel, Advocate Piet de Jager SC, Advocate Cilliers and Advocate van Zyl, were not available today. He also advised us that the South African National Defence Force, which is responsible for footing the bill for Doctor Wouter Basson's appearances before the Truth Commission was not amenable to Doctor Wouter Basson instructing other counsel.

We then called Colonel Kaiser at eight twenty a.m. this morning. He is the gentleman in the South African National Defence Force who liaises with persons needing legal representation. He advised us that he in fact had contacted Doctor Basson's attorneys yesterday after he got an enquiry from General Knobel's attorneys as to whether this matter was proceeding today.

I enquired from him as to whether he had refused permission for an alternative advocate to be briefed by Doctor Basson's attorneys. He advised me that he had not. He stated that no such request had been made to him. I have given a copy of a letter which I sent to Doctor Basson's attorneys today, to Mr Malan. A copy has been given to my learned friend and a copy has been given to the panel and with your permission I'd like to read it into the record.

CHAIRPERSON: Go ahead Mr Vally.

MR VALLY: Thank you Mr Chair.

"Dear Sir

RE: DOCTOR WOUTER BASSON

We refer to your telephone conversation with our Mr Vally at approximately 18H25 on the 28th of July 1998. You advised us that none of your counsel, that is Advocate Cilliers, van Zyl or de Jager were available to represent your client at the hearing on the 29th of July 1998. You further advised us that the SANDF had declined to allow you to brief alternative counsel for the said hearing. We contacted Colonel Kaiser of the SANDF today. He advised us that he had in fact contacted you yesterday after receiving a query from General Knobel's attorney and that you had indicated to him that your counsel were not available to attend today's hearing. However, you did not them or previously request consent to brief alternative counsel to represent your client at our hearing and have not done so to date. He further indicated that he would have considered such an application sympathetically and would have consulted with the State Attorney concerning this issue should such a request have been directed to him. In the circumstances, and especially as your client was aware of the relief sought by us as early as the 14th of July 1998 and which was subsequently granted by the Cape High Court on the 27th of July 1998, we trust that your client will comply with the said Court Order, failing which, we reserve our rights to take appropriate legal steps"

And the letter ends there.

I just have one further item to add. If the panel is inclined to grant a postponement I would strongly recommend that the postponement be no longer than tomorrow. We will need at least two days to canvass all the issues we wish to canvass with Doctor Wouter Basson. If such a decision is made to grant a postponement, it should not be longer than Thursday the 30th. As we are aware and as has been made clear and again for the record, in terms Act 33 of 1998, this is the Promotion of National Unity and Reconciliation Amendment Act, we are expressly not allowed to have anymore hearings in terms of Section 29 after the 31st of July 1998.

So effectively, if any postponement after this date is being sought this is to frustrate, number one, the workings of this Commission and number two, it will be contemptuous of the Order granted by the Cape High Court on Monday the 27th of July 1998. Thank you Mr Chair.

CHAIRPERSON: Mr van Niekerk?

MR VAN NIEKERK: Mr Chairman, I'm not asking that the matter be postponed beyond the 31st of July at all. I'm in the hands of the Commission as to the date of postponement. If tomorrow suits this Commission, so be it. If Friday suits the Commission, so be it. I am briefed ...[intervention]

CHAIRPERSON: Well today suits the Commission quite frankly.

MR VAN NIEKERK: Well unfortunately ...[intervention]

CHAIRPERSON: And I'm talking about this afternoon for instance. I mean, you have not canvassed that with your, they may have been engaged in the morning only. You are not unacquainted with situations where you get to Court, a matter gets settled and suddenly you have all the free time in the world that you thought you did not have.

I am asking for a co-operation of the nature that shows me and satisfies me and this panel that we are dealing here with people who want to cooperate with us because they are appreciative of the issues which have to be canvassed before us.

Again I don't want to accuse anyone but there is an impression with this panel and I will repeat that there is a cavalier approach that is adopted by your client to the proceedings of this Commission. It's an impression that can be erased if there is evidence to the contrary and I'm afraid that as far as I am concerned I am not getting that.

Advocate Potgieter?

ADV POTGIETER: Besides Mr van Niekerk, Mr Vally makes the point that apparently one of the grounds on which the counter-claim of the Commission to compel Doctor Basson to appear today, was opposed. One of the issues that was raised by Doctor Basson's legal representatives was the fact of their apparent non-availability for today.

In spite of that the Commission was given a Court Order which expressly compels Doctor Basson to appear before us today. Now what is the effect of that on the application for a postponement, on the basis that the legal representatives are not available?

MR VAN NIEKERK: I am unable to answer that. I have read the portion of the Order that was issue by Mr Justice Hlope. I'm not sure whether he was aware that in terms, I think it's Section 34, Doctor Basson is entitled to be legally represented here today. And I am sure that ...[intervention]

CHAIRPERSON: He was aware, you can take it that he was aware. I can't speak for him but you can take it that he was aware.

MR VAN NIEKERK: Thank you very much Mr Chairman. I'm not in a position to represent Doctor Basson today. I have not read the papers relating to this matter. I believe there are a series of question that were put in writing to Doctor Basson. I haven't studied them, I don't know what the answer are, I've not consulted with my client.

I will not be appearing on behalf of Doctor Basson today, if I can call it, on the merits. My brief extends to apply for a postponement to a date that will suit this Commission.

If that postponement is not granted, I regret to have to advise the Commission that I will then be bound to withdraw as Doctor Basson's legal representative as I cannot appear for a man when I have not received proper and full instructions on a matter which is both technical and has far reaching consequences.

I have not attempted to delay these proceedings. I've attempted to assist the Commission wherever possible.

CHAIRPERSON: Mrs Sooka?

MS SOOKA: Mr van Niekerk, I just want to understand this quite carefully. You say that you were instructed yesterday to appear on behalf of Mr Basson and that your instructions only extended in fact to appearing this morning to ask for a postponement, is that correct?

MR VAN NIEKERK: That is quite correct.

MS SOOKA: Can you tell me, in terms of the postponement you've asked for you indicated that you are in the hands of this Commission, so therefore if this matter is to be postponed until tomorrow, have you taken instructions on whether Mr Basson's own counsel, the ones that appeared for him previously, are going to be available?

MR VAN NIEKERK: On my right I'm told by my assistant that that is what she understands to be her instructions, on my left Doctor Basson says he is not sure that they will be the same representatives.

MS SOOKA: So you're actually not sure, when you're asking for this postponement, whether we will not be placed in exactly the same position tomorrow as we are today?

MR VAN NIEKERK: My instructions are clear, that we are in the hands of the Commission, that today is the day on which the legal representatives are not available.

MS SOOKA: Sorry, with respect, you are not answering my question. I have asked you whether or not tomorrow morning we will not be faced with the same situation, where you client's counsels are not available to represent him. Can you answer equivocally on that issue please.

MR VAN NIEKERK: The answer is ...[intervention]

MS SOOKA: You're not sure?

MR VAN NIEKERK: No, no, the answer is, I'm trying to give you a direct answer, they will be available tomorrow should the court see fit to postpone this matter until tomorrow. They will be available on Friday should this Commission see fit to postpone this matter ...[intervention]

CHAIRPERSON: Don't even talk about Friday, don't even talk about Friday. I want to make it categorically clear that if we were inclined to a postponement, it would not be to Friday. That must be very clear, for all the reasons that Mr Vally's stated. I am not even sure that we are going to be inclined to a postponement to Thursday but I'm simply saying erase Friday as an option, it's just not an option.

We are just concerned, on your own admission your left something else which is contradicted directly by your right.

I think we should take the tea adjournment now.

MR VAN NIEKERK: Mr Chairman, I can perhaps clarify that point. Doctor Basson says that in fact Miss Jakeal, my assistant spoke to the attorneys in Johannesburg subsequently to him speaking to them, so that I must take her instructions in that regard as being the proper instructions.

CHAIRPERSON: I would like to suggest that we should take the tea adjournment now to enable you to get an unequivocally commitment from whoever, because that might assist us in deciding in whether the postponement should be to today in the afternoon because that is another possibility that we are thinking seriously about. We have got to get these proceedings on the way or it should be till tomorrow.

We'll take the tea adjournment now and we will resume these proceedings at eleven.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Can we get ready to start? Is there anything that you would like to add Mr van Niekerk to your submissions that you made?

MR VAN NIEKERK: Mr Chairman, you asked me to ascertain as to the unequivocal availability or not of Doctor Basson's legal representatives. The position is that I've only had a one third success rate in that two of the legal representatives are as perhaps could have been expected, out of office today, that's Advocate van Zyl and Mr Malan. We have left messages for Mr Malan to phone back and he has not done so as yet.

Insofar as Advocate Cilliers is concerned he is not available tomorrow but he is available on Friday. He is in the midst of preparing for a criminal in the Cape High Court of some major significance and cannot break free for tomorrow.

Mr Chairman, what I have in my possession though and which I will ask my assistant to hand in to the Commission, are my instructions as to today's appearance and as to the attitude of Doctor Basson to the giving of evidence and the answering of questions. Perhaps if we could hand that in to the Commission, I can take it from there.

CHAIRPERSON: Very well Mr van Niekerk.

MR VAN NIEKERK: You'll forgive the scribblings on the paper, they are mine and I didn't realise I would hand it in at the time.

CHAIRPERSON: Who is the author of this document? It doesn't disclose anything.

MR VAN NIEKERK: Mr Chairman, I received this from attorney Malan this morning. You'll see at eight forty two p.m., he sent it at eight forty two p.m. I got it this morning.

In my discussions that I had with Mr Cilliers this morning, who is the only legal representative that I was able to get hold of, he instructs me that this was drafted certainly by him and Mr Malan. I don't know about Mr van Zyl. He just said: "We drafted this last night to send down for you so that you would know what to do today".

CHAIRPERSON: What is the essence of this submission? I do not propose to read it.

MR VAN NIEKERK: Well Mr Chairman, may I suggest that before I answer questions on the instructions of Doctor Basson, that I should read this for you into the record.

CHAIRPERSON: For what purpose Mr van Niekerk, in furtherance of what purpose?

MR VAN NIEKERK: So that it is on record.

CHAIRPERSON: I understand that Mr van Niekerk. You are not therefore wanting to give us the essence of, is it in furtherance of the application for a postponement? I just want to get a sense of why we are where we are. I've not refusing to let you have the opportunity to read it into the record, I just want to get a sense of where we are getting to in view of an application in relation to which we must make a ruling.

MR VAN NIEKERK: Well Mr Chairman, I have applied for a postponement to date that is convenient to this Commission. You have asked me or Mrs Sooka asked me to be able to give you an unequivocal answer to the availability of the various legal representatives for Doctor Basson.

I have come out with, I'm afraid a somewhat patchy answer in that two of them are not in office and that's understandable in view of the fact that they said they wouldn't be available today. And Advocate Cilliers is not available. He had been booked for the consultations that he's now busy with, some two or three months ago.

CHAIRPERSON: I would like to understand what this document is. Is this a document that purports to be instructions from Doctor Basson to his lawyers?

MR VAN NIEKERK: I understand this to be an instruction that was given by Doctor Basson to his lawyers for transmission to me.

CHAIRPERSON: And you now want to read those instructions into the record?

MR VAN NIEKERK: I would very much like these instructions to be placed on record.

CHAIRPERSON: And are they emanating from Mr Malan?

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

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

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

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

MR VAN NIEKERK: As it pleases.

"Instructions from Doctor Basson

1. In the light of the Judgment of Justice Hlope on the 27th of July 1998, it is my instructions from my client that in spite of the short time given to him in terms of this order, he is prepared to appear before this Commission.

2. It is further my instructions that the client seen in the light of this mentioned order is prepared to answer any questions which are legally put to him.

3. It is further my instructions that not one of Doctor Basson's legal representatives who consulted with him and who prepared to assist him during questioning before this Commission, are available to appear to assist him during questioning in terms of Prayer 2 of the mentioned Order referred to above. It is further my instructions that in the light of the great extent of these documents relevant to this questioning and also the relevant facts, it was totally impossible for my client to give anybody instructions to assist him.

4. It is further my instructions that the Bar Counsel have been approached by the legal representatives of my client to clear the ethical position in the light of these particular circumstances. I want to make it clear that the reason for the fact that the legal representatives of my client who prepared to assist him during the questioning not being present here is because of the short notice of this date of questioning. It is then also in the pleadings before this Court and the decision of the Bar Counsel was that the legal representatives are bound through the instructions which they have taken earlier and that in terms of the ethical rules, they are obliged to fulfil those instructions.

5. It is further my instruction and my submission that my client, in terms of Article 34(1) of the Truth Commission Act is entitled to legal representation during questioning.

It is also my submission that it is one of my client's fundamental rights in terms of the Constitution.

6. The further submission for my client is then that such legal representation should mean effective representation. In other words by a legal representatives who had the time to prepare themselves properly and to scrutinise the relevant documentation.

7. I want to bring it under the attention of the Committee that I personally had no occasion to consult or had any insight into any documentation. I can say that I've met this client for the first time today. I did not have the opportunity to study the record of the previous proceedings.

8. It is further my instructions that the instance who finances the legal representation of the SANDF is not prepared to supply new legal representation. The huge costs associated with the duplication of work is the main reason. Practically they would not be able to prepare timeously for this questioning.

9. It is my instructions once again to confirm that my client would not ignore the order the justice. He is prepared to comply in all respects. In the light of the problems mentioned above, my client is not prepared to testify without legal representation. To give execution to the order of Honourable Judge, my client is prepared to answer in writing on any questions posed by this Committee should he be given the opportunity and to prepare these answers with the assistance of his legal representatives who can assist him.

My client further indicates that he will subject himself to any time limits posed by this Committee for the provision of such answer as is humanly possible. My instructions are furthermore that the answers should be provided by means of procedures which according to my instructions have already been followed during the working of this Committee in respect of other witnesses"

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

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

CHAIRPERSON: I see.

Mr Vally?

MR VALLY: Mr Chair, I want to firstly respond to these instructions. We are not absolutely clear. I assume it's Mr Malan's instructions to Mr van Niekerk. The heading says

"Instructions from Doctor Basson"

and there are some items which are in the first person, for example where it says:

"I want to bring to the attention of the Committee that I haven't had the opportunity to consult"

etc. I assume that is something written for Mr van Niekerk, so it's rather confusing. But there are certain factual aspects that I want to bring to the panel's attention.

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

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

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

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

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

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

MS SOOKA: Thank you.

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

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

ADV POTGIETER: So these were instructions to you as to what you should be saying to us? Have you changed the basis of this now because you had said to us that your postponement, your application for a postponement is until tomorrow or whenever it suits us and I understood it to be on the basis that Doctor Basson will appear and the proceedings would then carry on, but the instruction that you got here was slightly different in the sense that it ends on the note that we should change the process and we should, you should be asking for an opportunity for Doctor Basson to respond in writing to questions. Now have you abandoned that leg of your instruction? Is your position presently that it is a postponement for Doctor Basson to have his Gauteng lawyers present when he is asked questions? Is that the present position?

MR VAN NIEKERK: Mr Chairman, there may be an amalgamation of both of those, and please I ...[intervention]

CHAIRPERSON: It can't be.

MR VAN NIEKERK: As I understand it, it may well be possible that the matter is postponed and that in the interim questions are put to Doctor Basson, which he can reply to in writing as soon as possible and the matter will then be resumed.

My interpretation of this document is that ...[intervention]

CHAIRPERSON: Mr Malan, I don't want to cut across you ...[intervention]

MR VAN NIEKERK: I'm not Mr Malan, so you're not cutting across me.

CHAIRPERSON: I mean Mr van Niekerk. I don't want to cut across you, I want to treat you with the greatest respect. Your application until you introduced this document was premised on the sole basis that the Transvaal attorneys, Gauteng attorneys and counsel representing Doctor Wouter Basson are not able to be here.

You were fully appreciative of the fact that he is here to answer questions put to him in a public hearing and that is the application that we are seeking to apply our minds to. The sole issue that we adjourned for was for you to obtain and unequivocal commitment on the part of the Gauteng legal representatives as to their availability tomorrow and possibly Friday. That was the basis on which we adjourned and that was premised on the understanding that it still our prerogative to refuse any application for a postponement. I just want that to be very clear. We have not pronounced on - I indicated that we may even postpone to only 2 o'clock this afternoon.

Now this document takes the attitude that your client may not even have to appear in the form in which we have understood and in the form in which your application was premised upon.

Now what Advocate Potgieter seeks to understand from you is whether you are now making a fresh application on the basis of the last paragraph or whether you are abandoning the instructions which you got yesterday and were fully appreciative of and which when you made this application this morning, you did not rely upon because if you had this document yesterday, when you did make your application for a postponement you knew that one of the bases that your client seeks the matter not to be heard, apart from him not having a legal representative who was au fait with the issues, was that he would prefer to reply to such questions as we may want to put to him, in writing.

You didn't premise your application this morning on that ...[indistinct]. And that is why Advocate Potgieter wanted to know whether we must understand that not withstanding your reading this particular document into the record, we should not understand you to be relying on that section of it that seeks to say your client must be given an opportunity to reply in writing. You attempted to say it's an amalgamation and I say it can't be. I cannot see how it can be. Can we then get an indication from you that you are not relying in your application for a postponement, on us granting it subject to Doctor Wouter Basson only submitting written replies to such question as we may put to him?

MR VAN NIEKERK: Mr Chairman, that is not so at all. If you will have a look at paragraph 2, you will see that it is made quite clear there that Doctor Basson is prepared to answer any question that is lawfully put to him.

CHAIRPERSON: I see.

MR VAN NIEKERK: What we are doing, as I understand my instructions, is to say: in addition to that, if there are written that the Commission wants to be answered we will endeavour to answer those written questions, notwithstanding that there is a very short time limit.

CHAIRPERSON: Oh I see.

MR VAN NIEKERK: We will endeavour to assist this Commission that that additional offer is made and it should be understood as such.

CHAIRPERSON: Oh I see.

MS SOOKA: Sorry Chair, but it's prefaced by

"In die lig van die probleme hierbo is my client nie bereid om te getuig"

and that is a preface to that offer to answer questions in writing, and certainly my understanding of the nature then of what Mr van Niekerk is saying, is that this paper in fact changes the earlier application that he made because he is now saying here that if his legal representatives, the Transvaal ones are not available then he's prepared to give evidence, and in that event he will be prepared to answer the questions. Maybe I understand Afrikaans differently, so perhaps Mr van Niekerk can elucidate on that.

CHAIRPERSON: Advocate Potgieter, do you want to chip in your question also to Mr van Niekerk at this stage?

ADV POTGIETER: Chair, no, I think I should perhaps just allow Mr van Niekerk to respond to that. I've got another difficulty which I want to raise.

CHAIRPERSON: Mr van Niekerk?

MR VAN NIEKERK: The position is, Mr Basson - I'm here to apply for a postponement. I have not had an opportunity to make myself au fait with the documentation and I believe there is a mass of documentation and I will not be representing Doctor Basson here today in that regard because I will be failing in my duty as an attorney to a client if I embark on such a cavalier attitude.

Doctor Basson has said he will give evidence and I have set that out in paragraph 2. As I understand it, that evidence will be when his legal representatives are here and he is entitled to have that in terms of the Act.

Insofar as the written questions and the written answers are concerned, that as I understand it is made in an endeavour to assist this Commission to deal with the matter expeditiously. If the Commission doesn't want put written questions to Doctor Basson, so be it. He doesn't have to answer them. It's an offer he is making in order to assist this Commission, nothing more and nothing less.

CHAIRPERSON: Advocate Potgieter?

ADV POTGIETER: Thank you.

Mr van Niekerk, just on a different issue. Are you persisting with paragraph 8, particularly that first sentence?

MR VAN NIEKERK: Yes, Mr Chairman, those are my instructions.

ADV POTGIETER: You have a copy of the Commission's letter of today which was written by the National Legal Officer, Mr Vally, which confirms a discussion with Colonel Kaiser of the South African National Defence Force which on the face it appears to contradict this submission which you are making to us.

Colonel Kaiser has indicated to Mr Vally that Mr Malan had spoken to him, and I'm referring to that third paragraph where Colonel Kaiser is referred to, and he says in the third line, Mr Vally confirms the effect of the discussion he had with Colonel Kaiser and he says:

"However, you ..."

that is Mr Malan.

"... did not then or previously request consent to brief alternative counsel to represent your client at our hearing and have not done so to date"

Now clearly there is a contradiction on this one, but if you are saying that you are persisting with this submission and those are your instructions and you are satisfied that that is the factual position, then we know how to deal with this matter because there will obviously be consequences flowing from this.

If we are being misled on any of these issues then of course, you know there are clear consequences that will follow on that. That is why I thought I should raise this and put it to you and ask whether you are in fact in a position to persist with this one, or whether you can at best say: "Look, this is what they told me", because what you are doing now is you are presenting it to us as a matter of fact.

MR VAN NIEKERK: Mr Chairman, I am presenting this as part of an instruction that I've received. I cannot take it further. If there is a dispute between Mr Vally and Mr Malan as to what Colonel Kaiser said, I'm afraid I don't know what took place.

I have certainly not had an opportunity of investigating this matter at all. This letter was placed before me by Mr Vally this morning. As a courtesy it's been despatched to Mr Malan and I don't know what the answer to this is.

I can't take the matter any further than to set out on this paper what my instructions are, to lay it before the Commission and play open cards with this Commission.

ADV POTGIETER: That is what I thought your position was but your client might be in a better position to clarify this.

CHAIRPERSON: In fact I think in view of all of this we may go on ad infinitum. I'm going to ask your client to take the stand because we need to get direct and clear answers from him.

If Doctor Wouter Basson can take the stand? Doctor Wouter Basson?

MR VAN NIEKERK: Mr Chairman in what respect is my client now being asked to take the stand?

CHAIRPERSON: He is being asked to take the stand because he is here as a witness who was sworn in the last time, and this panel is in a position, it is here, it seeks to get certain clarifications about issues about this matter. Yours is not to represent him on the merits.

MR VAN NIEKERK: That is correct.

CHAIRPERSON: Yours is to be here to represent and make sure that insofar as the process is concerned he is being dealt with fairly. The prerogative of this panel is to establish certain facts from Dr Wouter Basson.

May I indicate that whilst we were in recess we are of the view that we should, in spite of our own convictions, be disposed towards granting a postponement in this matter, and which postponement would be till tomorrow, that however, it may well be necessary in order to save time to take evidence from Dr Wouter Basson which does not pertain to the merits, personal details about himself, so that those things that we would have done tomorrow can be done today, which will make sure that he's not prejudiced, and that your function would be fulfilled, if that were possible. That is part of the exercise that we would be embarking upon when he takes the stand.

But more particularly on this particular issue we would like to get some confirmation from him whether in fact what you say are your instructions, are his instructions, because he is here. It seems to me weird that we should be going about not establishing issues which he himself can clarify quickly. That is the basis on which we would like him to take the stand.

MR VAN NIEKERK: Mr Chairman ...(intervention)

CHAIRPERSON: Unless your client is refusing to take the stand.

MR VAN NIEKERK: Mr Chairman my brief is to apply for a postponement. I have applied for a postponement. This Commission will decide whether it will accede to that application or not.

CHAIRPERSON: Yes.

MR VAN NIEKERK: I have no mandate to appear on behalf of Dr Basson in any other respect whatsoever. Should he take the stand, you have already indicated you want to question him about personal matters, that goes beyond my brief. I will then have to withdraw and Dr Basson will then be without a legal representative, and he's entitled to have one in this court.

CHAIRPERSON: Mr van Niekerk I have endeavoured to indicate to you that now that I request your client to take the stand it is only insofar that we wish to be able to get it from him, as a witness who is before us as he ought to have been and he is, on issues that might persuade us to grant a postponement to tomorrow.

One of the issues that need clarification are whether or not he has instructed his attorneys on some of the issues that are now on record. We would like to know what he understands, what his attitude is, whether it is in fact his attitude, that for instance in relation to paragraph 8, that he is not in a position to appear with or without his Gauteng lawyers. That is something that it is our prerogative to get clarity on, and I cannot see in what way that would prejudice you because we are dealing with the postponement which you are here for him to represent. We are taking evidence, in other words, where you would have led evidence from him, in support of your application. There are instances now where we would like unequivocal answers from him.

I see you nod and I am sure that it is because you understand.

Mr Wouter Basson can you take the stand please.

MR VAN NIEKERK: Mr Chairman I would like a short adjournment to take an instruction from my client.

CHAIRPERSON: Mr Vally?

MR VALLY: Mr Chair I am not objecting to the adjournment but I think whilst Mr van Niekerk may want to take instructions and I understand the ruling from the Chair about Dr Basson giving us clear evidence as to what his instructions are, there are certain aspects which will be relevant to asking Dr Basson about his instructions pertaining to this document handed in, and I would like to place it on record, it will facilitate the work of the panel when they do question Dr Basson on his instructions.

CHAIRPERSON: What are you asking for Mr Vally?

MR VALLY: Just very briefly to talk about some of the points raised here especially where, in our opinion, there are factual inconsistencies to bring to the attention of the panel, besides those which the panel has picked up themselves.

CHAIRPERSON: Can you therefore go ahead Mr Vally?

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?

MR VAN NIEKERK: No Mr Chairman, there is very little I can say in reply other than to say that my understanding of the written question and written answer situation that that would be something that would be attended to forthwith. That there would be no delays of weeks or anything. That would effectively have to be done by tomorrow before this Commission's terms of office runs to an end and that Dr Basson would then, with his legal representatives in attendance, attend a hearing of this Commission and in addition to having answered the written questions will give viva voce evidence.

CHAIRPERSON: Thank you Mr van Niekerk.

Exercising my prerogative as I do as a member of this panel, and as Chairperson thereof, I am asking your client to take the stand because I want to put questions to him relevant to your application for postponement. If he refuses he must instruct you to be saying he is refusing and due regard must be taken to the provisions of Section 39 of the Act with regard thereto. I am not making a request, I am exercising a prerogative which is vested in me by law as Chairperson of this panel.

MR VAN NIEKERK: My client says he will take the stand to answer questions relating only to the application for a postponement. If other questions are put to him he will refuse to answer them as I am not briefed as his legal representative in that regard.

CHAIRPERSON: Thank you.

Dr Wouter Basson you are reminded that you are still under oath.

WOUTER BASSON: (s.u.o.)

CHAIRPERSON: Now we intend to consider your application for a postponement as fairly as possible, but we also would like to understand from you whether you appreciate our difficulty. Now do you understand that evidence from you, in order for us to be acting inside the provisions of the law, has to be taken from you by the 31st of July, 1998?

DR BASSON: That has been explained to me by my legal representatives that the activities of the specific committee who is handling this session will come to an end at the end of the week.

I also understand that my contact with this specific organisation, namely the Truth and Reconciliation Commission, has been since October 1996. For the first time then I was approached by members of the Investigative Unit, the Research Unit of the Truth Commission who made certain proposals to me. It was in discussions regarding amnesty and regarding certain identity of people overseas, and should I make information available some people would be prosecuted who were involved in this Chemical and Biological Warfare programme. ...(intervention)

CHAIRPERSON: Yes, yes ...(intervention)

DR BASSON: Could I please finish, I am trying to answer your question. I am trying to explain to you what my view is regarding my approach and your approach.

I've explained to these people that this was an extensive project and very good work was done in this project by other scientists ...(intervention)

CHAIRPERSON: Dr Basson you are not answering questions ...(intervention)

DR BASSON: I am trying to answer ...(intervention)

CHAIRPERSON: No you are not ...(intervention)

DR BASSON: ....to the best of my ability. When you come to the time of the 31st of July my answers are pertinent.

As from October 1996 I had contact at various instances and said that I was willing to cooperate. We were intimately involved ...(intervention)

CHAIRPERSON: Dr Wouter Basson with respect I must cut you short, with great respect.

DR BASSON: Then I will answer your question as follows, shortly. My short answer is this ...(intervention)

CHAIRPERSON: Yes.

DR BASSON: ....I understand that by the end of this month things should be completed. I understand that I am entitled to legal representation. I understand that because of various things which happened and delays were caused I do not have legal representation at the moment. I have tried to obtain legal representation for today but I do not have legal representation here today. I am trying my utmost best. I don't know when they will be available.

CHAIRPERSON: And do I take it that you are keen cooperate with the Commission and you do not wish to be understood that you intend directly or indirectly to frustrate the process, especially of this Committee, whose work must come to an end on the 31st of July. Is that my understanding of your attitude, just on the attitude?

DR BASSON: I have no problem at all to cooperate with the Committee and I've said this often before on the condition that certain of my constitutional rights should be complied with. That I should also be afforded the protection like other people who are involved in this process. I am willing, I am not unwilling to cooperate and I've not tried to delay this process at all.

CHAIRPERSON: You also are aware that at all levels, firstly before us and secondly before the Cape High Court, your rights in terms of the Constitution and in terms of the law were strenuously argued by your legal counsel and that notwithstanding that there is now an order of court for you to appear before us and answer questions.

DR BASSON: You expect from me that I should comment on legal aspects which I have no experience on ...(intervention)

CHAIRPERSON: I am simply asking - Dr Basson, Dr Basson we cannot talk together.

DR BASSON: I am trying to answer your question.

CHAIRPERSON: Please, but when I indicate to you that I need to explain some question, please, with respect, give me an opportunity to clarify an aspect that you do not understand.

DR BASSON: I will do that Mr Chairman.

CHAIRPERSON: Yes. Now what I am asking from you is whether you understand, not withstanding your application by your lawyers here before us about your Constitutional rights to - right to remain silent; to a right against self-incrimination, and notwithstanding an application to the High Court, and notwithstanding the High Court appreciating that your legal representatives might not be here today, the Court nonetheless ordered you to be before us today, all I want to ascertain is whether you understand that, or whether you understood it differently?

DR BASSON: I have understood it differently. May I continue?

CHAIRPERSON: Yes.

DR BASSON: I understood it, I have understood that the Judge ordered me to appear here today to answer questions which were posed to me legally. My briefing by my legal representatives and my interpretation include the term that I could have legal representation. I do not have legal representation here today. I could not arrange that. In other words I am not sure, and at this stage it is a problem which I will try to handle about what the circumstances are if I should not have legal representation. As I understand it I cannot answer questions without legal representation.

CHAIRPERSON: I am pleased you used the word "your understanding" advisedly. That may well be so. Do I understand your position to be that you are in no position to make an undertaking about the presence of your lawyers tomorrow, or of lawyers who could represent you on the merits tomorrow?

DR BASSON: I understand it at this stage, after I tried to contact the legal representatives this morning, that Mr Cilliers will not be available tomorrow and would perhaps be available on Friday. As I understand it the other members of the team will also not be available on these two days.

CHAIRPERSON: Do you appreciate that no rights, including rights in the Constitution are absolute?

DR BASSON: I don't understand the concept ...(intervention)

CHAIRPERSON: You do not. In other words, if you have rights they must apply, or they must be applicable come what may. They are not limited in any sort of way, is that your understanding? If you have a right to legal representation it doesn't matter what the circumstances are you must get it. If otherwise you don't have it then your attitude is that your cooperation will be withdrawn?

DR BASSON: I understand that I should do everything in my ability to see that I have legal representation. I don't understand the concept of an absolute right. I understand that I can exercise my right to have legal representation and that I could do everything in my power to obtain legal representation.

CHAIRPERSON: Let me ask you a hypothetical question. Let's assume that we grant you a postponement till tomorrow on the basis and on the understanding that these proceedings will continue, will take place, whether or not you have a legal representative, and we are taking into account that you have done everything in your power but that that notwithstanding these proceedings will continue? Now that is a hypothetical question. Would your attitude be that that is an infringement of your right to legal representation?

Secondly, that on that basis you are not available and you are not prepared to cooperate with us? Let us say that was how we would be inclined to go.

DR BASSON: Can you repeat the question please, I did not understand.

CHAIRPERSON: If we were to say to you, "Dr Wouter Basson we are appreciative of your problems and your attempts to get legal representation, however, we are prepared to grant you a postponement till tomorrow morning at nine o'clock before us, but you must understand that whether or not you are legally represented tomorrow we will proceed and we will take evidence from you", now let's assume that that is the attitude we take, are you going to - would you say that you would then, in that instance, and I have regard to the document that you submitted to us, especially paragraph 8 thereof, would your attitude then be that in that instance I am not prepared to cooperate? You can say you don't want to answer a question that is speculative, if that is what you want, but I just thought that since we are engaged in an exercise where we need to understand and trust each other and rely on each other's integrity, you might want to indicate to us where you stand in regard thereto.

DR BASSON: Mr Chairman with respect regarding the speculative question I can just say that I am trying to arrange legal representation. If you could postpone that to tomorrow I can try my utmost best to obtain legal representation. Should I not be successful in that regard and the Commission's activities are continued at that stage I will decide what my approach will be. My approach will be aimed at cooperation as far as it is possible within my own rights and abilities without prejudicing myself.

I would like to repeat the cooperation I have in mind will also have assurances regarding certain information I want to convey, the protection of that information you are aware of the judgment by .....(tape ends)... the appeal is pending, I want certain assurances from the Commission how certain aspects will be handled.

CHAIRPERSON: Just about what you are saying, do I understand the attitude to be that when you do- or let me put it this way given the nature of your replies, if and when you appear, say for instance before us tomorrow and let's assume that you are legally represented, do I understand your appearance to be premised on your legal representatives taking the attitude that it may well be incompetent for us to take evidence from you because you are seeking to appeal against the judgment that was given to us?

MR VAN NIEKEK: Mr Chairman I must object to that question, that doesn't relate to the question of the postponement.

CHAIRPERSON: It does because it seems to say that your postponement may not be to obtain the results that you may well have to decide whether or not a postponement is competent, you may just be postponing in order for us to argue for a further postponement pending the outcome of an appeal. ...(indistinct)

DR BASSON: Mr Chairman you understood me wrongly, I want to explain slowly. What I'm trying to say is that Justice Hlophe, made a certain judgement namely that I have to testify with legal representation, I hope. He gave us the right to appeal but the right to appeal did not cancel his judgment, in other words I still have a right to appeal, as I understand it. The basis on which the decision was made, as I understand it, was based on, in certain commercial cases, a certain amount of money had to be transferred and then the recipient of the money had to provide guarantees for this amount of money until the appeal has been lodged. And then if the appeal is granted and the original judgment reversed, restitution should be given.

If I testify here and I understand and you don't interpret the difference as we do the right to keep silent during these hearings I would make certain statements which would become publicly known to certain authorities who are prosecuting me and that would be to my detriment or that would prejudice me, I have no remedy. And the sort of remedy I would expect is then when I should testify, this is also speculative, should I testify I would certainly expect a counter-achievement from this Commission that certain guarantees should be provided that the information should not be made available to anybody else but the Commission. I did not question the competency of this Commission to question me.

CHAIRPERSON: Thank you Dr Basson. I don't know if any members of the panel want to put some questions. Advocate Potgieter?

ADV POTGIETER: Thank you, thank you Chairperson. Dr Basson was your submission to us now that from all of the legal representatives that have represented you earlier only Advocate Cilliers can possibly assist you on Friday, and that the others are not available at all to represent you between now and Friday?

DR BASSON: I would like to answer that question in two parts. You are talking about all the legal representatives who have ever represented me. It is unfortunately the case that there are various actions pending against me in which various legal representatives were involved. Often it was not necessary for them to make themselves aware of all the facts. The only advocate who is completely informed about all the facts at this stage is Advocate Cilliers. He dealt with certain aspects of subsections of the project and other parts of the project. He is also not completely informed. I will have to spend a couple of hours with him to inform him. That is the first part of the answer.

Not many legal representatives have represented me on all of the facts.

The second part, up to this stage I was informed that Advocate Cilliers would be available on Friday. I have not received any answer from Malan or Cilliers regarding their availability because both of them are involved, as I was informed and as they yesterday afternoon informed the Bar Council, that they were busy with other matters that have been set down long ago. On the advice of the Bar Council they told me that we must find somebody in Cape Town to come and explain the matter today and to do what I was ordered to do by Judge Hlophe which was to appear here today.

At this stage I know that Advocate Cilliers will possibly be available on Friday.

ADV POTGIETER: That is the point. At the best in other words, the situation is that Advocate Cilliers will possibly be able to assist you on Friday?

DR BASSON: I said "possibly", it has not been confirmed yet. It is possible that my legal representative cannot say that he will be available. As far as I know he might be, it is possible.

ADV POTGIETER: That is important for us. That is why we have asked you to testify so that we can get the facts of the matter, so that we can know on what we can base a postponement. In other words tomorrow is completely out of the question, if you get your choice of legal representation then I accept that you are saying that Advocate Cilliers is the person and the only person, the only legal representative who is in a position to protect your interests during these proceedings between now and Friday?

Let's take this first, do I understand this correctly?

DR BASSON: I am saying that Advocate Cilliers is the most competent and the best informed legal representative to fulfil this task satisfactorily.

ADV POTGIETER: In other words you wanted him to represent you?

DR BASSON: Yes that's correct, but I also indicated that I am busy to investigate alternative options. I am looking at alternative legal representatives, acquiring them in the first place and then giving them instructions so that they can represent me in a satisfactory way. I am not unwilling to assist the Committee but I am staring long litigation in the face. Even though the Committee wants to assure me that none of these proceedings here will ever be used against me or will have any negative effect on the pending litigation, it is not my experience of the legal system of the country.

ADV POTGIETER: Good, let's leave that there for the moment. Let's sort out this situation. You are in other words saying it is not your position that you insist on Advocate Cilliers representing you, you are investigating other alternatives. As far as Advocate Cilliers is concerned it is possible that he will be able to be here on Friday. You are investigating other alternatives but you don't have any specifics concerning these other alternatives you are investigating, is that correct?

DR BASSON: No it is not correct to say that I don't have any particulars. I do not know if I can, at this stage, involve people or name people without my having cleared it with them first.

ADV POTGIETER: It is important for me that you must tell us is it possible for you to have legal representation tomorrow? The Chairman has stressed the essence of the time. What are the possibilities that you will be able to have legal representation tomorrow?

DR BASSON: As I have already said Advocate Cilliers is definitely not available. Advocate van Zyl is busy with a case in which sometimes these things last half an hour a day or two or three days instead of one day, so he could not tell me when exactly he would be finished. He will inform me about his position sometime during the day. He would have been the second choice after Advocate Cilliers because he has been informed in a broader perspective, but I do feel that he is not informed to such an extent that he can give me the satisfactory protection that I need.

Advocate de Jager was peripherally involved, he was only involved in the last application and in that his main purpose was to argue the question of the right to remain silent. He did not need a factual basis for this argument. He did not see any of the documents.

Advocate van Zyl during his acting for other people in front of the Commission has had insight into some of the documentation so that would make it a bit easier.

ADV POTGIETER: These are then the only possibilities that you are looking at, Advocates Cilliers, van Zyl and de Jager?

DR BASSON: Those are the three I am looking at in the definition of "satisfactory legal representation". Anything else will for me, as a person, be unsatisfactory. It would make me feel unprotected. It is not impossible that I will have to decide to walk down that road, but for me personally it would be unsatisfactory. I would not feel protected in my own perception.

ADV POTGIETER: And to complete the list, Mr Malan, what is the position?

DR BASSON: Mr Malan has been involved throughout in the administrative part of the proceedings. Due to the numerous clients he had he did not have the time or the ability, and I am not talking about his intellectual ability, it's just his physical, the physical time to inform himself completely about the facts.

ADV POTGIETER: In other words Dr Basson, the possibility is that come Friday not one of these three advocates would be available to represent you. And it seems to be a fact that not one of them will be available for tomorrow.

DR BASSON: You ask me a question that I cannot answer. I cannot answer on behalf of other people. I can express my appreciation of legal help that I am trying to arrange but these people are involved with their own programmes and I am trying to find a solution. It seems that my legal representative has other information that I do not have regarding Mr Cilliers availability.

ADV POTGIETER: Were you throughout aware that the possibility exists that this situation that you are facing today that the Commission would ask for a counter-order to force you to testify whether or not you file for an appeal?

DR BASSON: I am aware of the Commission's counter-application and I took notice of the implications thereof. I also took notice of the fact that the legal representatives I had have unequivocally in our affidavit said that they would not be available today. At that stage when I received notice I started investigating alternatives. I approached the Defence Force and I was told by the Legal Department of the Defence Force that they would not consider appointing alternatives due to the costs involved in preparation. The cost of the appearance, I gathered that they would be willing to pay for the appearance but they would not finance the preparation. That was told to me by the Legal Department of the Defence Force.

ADV POTGIETER: Thank you Chairperson.

CHAIRPERSON: Mrs Sooka.

MS SOOKA: Dr Basson I would like to understand what you are saying. Initially I understood that the basis for the postponement was because you were not going to be given proper legal assistance. But if I hear what you told my colleague, Advocate Potgieter, it seems that the only basis upon which you are going to appear before us is if one of those three counsels is available.

DR BASSON: That is not what I said. I would like to repeat what I have said. I said that for me personally the optimal solution would be to have Advocate Cilliers available. I would be prepared to make certain concessions to my right to legal representation in that I would accept somebody who is less informed about the subject. But I also later on told Advocate Potgieter that after these options have been exhausted I would possibly consider appointing somebody who is not completely informed, who is satisfactorily informed about the facts. I would consider using somebody like that and we are in the process of investigating that option.

MS SOOKA: Could you tell me when you became aware of the fact that neither of these three would be available to assist you today?

DR BASSON: If you read my affidavit you will see that during the filing of the affidavit I had been aware of the fact that not one of them would be available for today.

MS SOOKA: Could you give me the precise date please?

DR BASSON: I cannot remember the date.

MS SOOKA: It is the 22nd of July, if I understand correctly.

DR BASSON: If you say so, it is correct.

MS SOOKA: Would you call yourself a responsible person?

DR BASSON: I am not sure what this question has to do with the question of postponement.

CHAIRPERSON: Can you answer the question Dr Wouter Basson, please. It is a legitimate question put to you by ...(intervention)

DR BASSON: Yes.

MS SOOKA: Do you appreciate the nature of the proceedings that are being held against you?

DR BASSON: Yes.

MS SOOKA: Could you tell me why you have not been able since the 22nd of July, today is the 29th, been able to make the proper arrangements to appear before us with legal assistance?

DR BASSON: The basic reason is that the legal team had been busy preparing for the High Court application and that in the process I could not find any other legal representation from the Defence Force even though we had discussions with them we got no undertaking from them that they would support me any further. In this process I then decided to try and find alternative solutions. I have been looking for alternative solutions for the past week or so.

MS SOOKA: If I understand what Mr Vally has conveyed to this panel it relates to the fact that the person who is responsible for legal representation at the Defence Force has indicated that he was never approached on that particular basis. Could I hear what you have to say in that regard please.

DR BASSON: I personally approached the person concerned and he told me this himself.

MS SOOKA: Is this Colonel Kaiser?

DR BASSON: That is correct, yes.

MS SOOKA: Thank you.

CHAIRPERSON: Dr Randera.

DR RANDERA: Dr Basson just tell us when did you approach Colonel Kaiser?

DR BASSON: It was shortly after the High Court application. I cannot remember the dates.

DR RANDERA: Dr Basson you know earlier Ms Sooka asked whether you are a responsible person and you said you were. I am not a legal person so you'll excuse me if I don't use the language that is being used here. It appears to me that we are involved in a very bad chess game at the moment, but it's not as if this has just suddenly been put onto your table to say let's do an angiogram tomorrow morning and you are not aware of it. You have been coming to these hearings. Your legal representatives made - took us to court against a decision that was made within these rooms. There was ample time for you to approach the military people long before. I mean you said earlier on that you knew on the 22nd of July that all these legal representatives that you are talking about would not be available, yet you only approach Colonel Kaiser after the judgment is made on Monday, did you not say that?

DR BASSON: No I am afraid you made a factual mistake there. I approached Colonel Kaiser after we became aware of the notice of motion, in other words after we became aware of the fact of the possibility that I might have to testify on the 29th, and after it was written into my affidavit that my legal representatives would not be available. I did not wait until after the judgment, I discussed it with him before the judgment.

DR RANDERA: But Dr Basson it does appear - I mean Mr Vally said earlier on it seems as if there is an attempt to sabotage these hearings, and we are now - earlier on we were being told that you would want a postponement. Now again the understanding, the goal posts have shifted once more and if these legal representatives are not available we may not be able to have the hearing, and you know we finish on the 31st of July as you are well aware, now how are we meant to take these procedures forward?

DR BASSON: I am afraid that the perception that you have gained might be your perception or it might be shared by the rest of the panel at no stage did I attempt to delay anything. I have tried to look after my legal rights. Mr Vally's long speech about discussions to and fro, I was under the impression that I could exercise my Constitutional right to remain silent, and in my awaiting of the documentation, which I have received at a very late stage, I think I only received it at the end of May together with the order to appear here today I decided not to answer these questions. And it happened that I was later on advised by my legal representatives that I must inform Mr Vally that I will not answer the questions. This was changed by the fact that Judge Hlophe ordered me to testify. Now this would give me satisfactory protection for myself in the sense that I will, together with my legal representatives answer these questions. This would be satisfactory for me.

The offer, and I do not like the word offer, but the possible compromise to save the time that might be lost in an attempt to put together a legal team for me, that some of this time could be saved with written answers which will not be done in terms of a request from anybody but in terms of Judge Hlophe's order. That is how I see this aspect.

I have not tried to delay anything. The week of the 8th or 12th of June I attended the hearing, time could have been saved by having me testify on the Monday instead of the Wednesday. I do not want to go into those issues. I am not convinced and I do not believe that I have done anything to delay the procedures before this Committee.

My personal contribution, my responsibility and what I have read of the record of the Truth Commission I am not convinced that I can contribute to a great extent to what has been heard before the Commission. What has been said before was said by inferiors and some of my superiors. I am not sure how I can contribute to that. Even though I do have certain doubts I am here this morning and I did what the Judge told me to do. The only thing I asked was that everybody knew beforehand that I would not have a legal representative available for this hearing. This does not make me less responsible.

CHAIRPERSON: Thank you Dr Basson.

R U L I N G

This is an application for a postponement made on behalf of Dr Wouter Basson to a date convenient to the Commission. The bases that have been given to us vary, but the essence thereof is that it is to afford Dr Wouter Basson an opportunity, which flows from our Act, to be legally represented.

These proceedings are themselves a continuation of proceedings which, with regard to Dr Wouter Basson, commenced on or about the 10th of June 1998 when he was sworn in but before he could evidence various applications were made on his behalf by his legal counsel.

One of the intervening circumstances before we could take evidence was an application to the Cape High Court, which was initiated by himself, and a counter-application which was brought in by the Commission, the outcome of which the court order was issued with various reliefs to the Commission, the essence of which was to dismiss his application and to order him to appear before us today to answer all questions lawfully put to him.

We are, therefore, in the continuation of those proceedings which, as I have said, commenced on the day when we were to take evidence from Dr Wouter Basson in June 1998.

A very passionate plea, both by himself and by his legal counsel, or legal representative today, has been made on the basis that, if for no other reason but for the reason that our Act entitles him to legal representation it would be unfair if he were not to be represented, preferably by legal counsel of his choice, but certainly by competent legal representatives who would be able to represent his best interests on the merits.

Mr van Niekerk has indicated that he himself is neither competent, by reason of the fact that he has not taken any full instructions, nor able and ready to represent Dr Wouter Basson on the merits, clearly by reason of the fact that in terms of the legal ethics that govern the conduct of attorneys, it would be unimaginable that he should even pretend to be representing somebody from whom he has not been able to take instructions.

This panel takes the points, they are very sympathetic. Against their own will they indicated that it may well be that in the interests of fairness, and in the interests of justice Dr Wouter Basson should be granted a postponement.

It is in accordance with the exercise of his legal and Constitutional rights that on a plea for a postponement on the grounds advanced this panel should be inclined and keen to grant him a postponement.

I had occasion during the course of the proceedings to remark that no rights are absolute, and I think the panel has to weigh sometimes, as most tribunals have had to do, and as most courts have had to do, competing rights. The Constitution has or the Act has in the Promotion of National Unity and Reconciliation Act has a duty to do certain things, one of which is to carry out the mandate of the Commission. The particular Committee vested with the duty to take evidence on perpetration of gross violations of human rights and matters incidental thereto is the Human Rights Violations Committee. Its mandate ends on Friday.

There are certain obligations on it and whilst we appreciate the inference to be drawn from Dr Wouter Basson's interventions, namely that we have been dealing with him since August 1997 or 1996 for that matter, and therefore we had plenty of opportunity to have engaged with him, the fact of the matter is that on the 29th of July 1998 we have not so engaged with him and we have only the following two days to do so.

We would therefore urge with every sympathy that we have shown, but with everything at our command, that he should utilise the remaining part of today and endeavour to get either legal representation or the legal representatives of his own choice as he has indicated, or such legal representatives as will be able to come and represent him on the merits tomorrow at 9 o'clock, which is the date on which we have agreed the matter must be postponed to.

May I just add in parenthesis that these proceedings are not proceedings in a court of law, this is a tribunal, it is one that has been set up in terms of Section 29 on the basis of which we subpoenaed Dr Wouter Basson. I will have more to say about the validity of that subpoena when later on during the course of these proceedings I deal with the question of whether or not Dr Wouter Basson was contemptuous of this court when he arrived as he did at a quarter past nine. These are matters that we still will reserve until we are in a position to do so at the tail end of these proceedings.

I might just remark that in connection with the postponement, it is to tomorrow at 9 o'clock in this room or such time at 9 o'clock. I have to emphasise that we will reluctantly have to proceed tomorrow whether or not Dr Wouter Basson is legally represented. We will now adjourn until 9 o'clock tomorrow.

HEARING ADJOURNS