TRC Final Report

Volume 1

Chapter 7

Subsection 14

■ DR WOUTER BASSON AND THE CHEMICAL AND BIOLOGICAL WARFARE PROGRAMME

Wouter Basson v the Truth and Reconciliation Commission: application to the Commission

Background

117 The Commission conducted a public hearing into the Chemical and Biological Warfare programme (CBW) of the former apartheid government (8 and 12 June 1998). A number of witnesses involved in the CBW programme were subpoenaed to testify, amongst them a Dr Philip Mijburgh and Dr Wouter Basson, the project leader.

Application

118 During the course of the hearing, an application was lodged by lawyers for the two witnesses, Drs Basson and Mijburgh, requesting that the taking of their evidence be held over, or alternatively that the proceedings be stayed pending the finalisation of their criminal trials.

119 At the time of the hearing, only Dr Wouter Basson had been formally charged for offences that ranged from murder and fraud to the manufacture of dependence-producing substances. The Attorney-General also indicated that the charge sheet was still provisional.

120 In the case of Dr Mijburgh, no charges had been preferred and there was only a possibility that he too, would be charged.

121 Their application was premised on a submission that compelling the witness to testify would amount, amongst other things, to a breach of the witnesses’ right to remain silent as well as a right against self- incrimination as entrenched in section 35 of the South African Constitution. Both witnesses had been subpoenaed to appear and give evidence in terms of section 29 of the Act.

122 The application was opposed by the Commission’s Legal Adviser, Mr Hanif Vally, who contended that:

a the testimony of the two witnesses was critical as it concerned matters of grave importance to the nation which vitally affected the mandate and obligations of the Commission;

b although the provision of section 35 of the South African Constitution applied to this matter, the obligation of the two witnesses to testify did not amount to a breach of their fundamental right to remain silent and their right against self-incrimination.

123 He submitted further that section 31(3) of the Act provided sufficient immunity and safeguards and stated that, if there was a breach of the witnesses’ rights in terms of section 35, this was permissible given the overriding social and other objectives pursued by the Commission and the discreet and narrowly tailored interference with the witnesses’ right crafted by section 31(3).

Decision

124 The Commission, through Adv Potgieter SC, ruled that the proceedings would not be stayed; nor would the testimony of the witnesses be held over. The Commission ruled that the witnesses were compelled to testify.

125 In considering the matter, the Commission took the following facts into account:

a Any potential prejudice that the witnesses would suffer by disclosing elements of their case prior to the criminal trial was sufficiently accentuated by the provisions of section 31(3);

b The importance of the testimony of the witnesses for the Commission and issues relating to its mandate.

c The fact that the testimony of the witnesses would not be available to the Commission if they did not testify at this time, as there was uncertainty in regard to the finalisation of the prospective criminal trial. In view of the termination of the Commission’s mandate to conduct hearings from 31 July 1998, it would be precluded from establishing the fullest possible picture of the CBW programme in accordance with its mandate.