CHAIRPERSON: Good morning. I just want to apologise for the slight delay. It sounds like Sun Air or SAA. We are just waiting for two passengers.
My apologies again I am very sorry that we have not been able to start at nine 'o clock as we had scheduled. We are waiting for two people. One arrived and we are now missing two others. We may now be able to begin. Will you please sit down. Thank you very much. Can we just have a moment of silence please.
Come Holy Spirit fill the hearts of Thy faithful people and kindle in them the fire of Thy love. Send forth Thy Spirit and they shall be made and Thou shalt renew the face of the earth. Amen.
I want to welcome you all very warmly to this special hearing. It is a special hearing relating to the biological and chemical warfare programme, especially with regard to human rights violations and abuses.
May I introduce my colleagues. My very extreme right is Professor Peter Folb, a pharmacologist, professor of pharmacology at UCT.
Chandre Gould and Hanif Vally and Jerome Chaskalson on our staff.
And then the panel here is Wendy Orr, a Commissioner and Deputy Chairperson of the Reparation and Rehabilitation Committee of the Commission.
Alex Boraine, Deputy Chairperson of the Commission. Dumisa Ntsebeza on my left, Commissioner and head of our Investigative Unit.
Doctor Fazil Randera, Commissioner, member of the Human Rights Violations Committee and in charge of our Gauteng office.
And Denzil Potgieter, advocate, past member of the Human Rights Violations Committee, promoted or demoted to Amnesty Committee based here. I think you want to say something Hanif. Good morning Hanif.
MR VALLY: Good Morning my apologies. I was consulting with my learned colleagues as a fact. Arch there has been indication to me by Professor Haysom that there is going to be an application this morning prior to us starting. I don't know if he wants to indicate the application he wants to make and maybe when he indicates that I will address the panel on the issue of whether it should be in camera or not, the argument. I believe it should not be in camera but I will justify it legally. But maybe Professor Haysom, unless Advocate Gumbi is doing the running.
CHAIRPERSON: Let me welcome the three of you. Professor Haysom, Abdul Minty and Advocate Gumbi, welcome.
MR HAYSOM: Thank you. Do I call you Chairman, Archbishop or do I call you Archbishop, Chairman?
Mr Chairman perhaps I can just introduce ourselves and explain the capacity in which we are here. I am Nicholas Haysom and from the president's office and I am with Advocate Mujancu Gumbi from the deputy president's office. But we are here effectively have been lent to Mr Abdul Minty to assist him. And he is here in his capacity of chairman of the, and it is a long name, The South African Council on Non-proliferation of Weapons of Mass Destruction. It is true that what we will want to do is to put to you a particular proposal regarding the way in which these proceedings are to be conducted. I can sketch out the nature of that proposal now or else do it after Mr Vally has given his explanation as to why this hearing should be in camera. I need to explain that our presentation and all three of us will be presenting on various aspects of our proposal will involve an application under Section 32 that the hearing be held in camera. We had originally thought that such an application could not be brought in public but I am quite confident having looked at Section 33 that it is possible. And we would prefer to bring that application in public rather than in camera. I am in your hands as to whether we proceed to.
CHAIRPERSON: Thank you very much. Is there?
MR VALLY: Archbishop we would prefer to be heard in public as well if you want me to address you on the shell in terms of Section 33 I think Professor Haysom is referring to Section 33, 1 c, which says: "An application for proceedings to be held behind closed doors may be brought by a person referred to in paragraph b and that is a person who views it will be in the interest of justice or that it is likely that harm may ensue. Let me go on,
"Application for proceedings to be held behind closed doors may be brought by a person referred to in paragraph b and such application shall be heard behind closed doors."
That is what the Act says. If the panel wants me to address them on why we can hold it in public I will do. Unless Professor Haysom wants to do so. I can keep it very short.
CHAIRPERSON: I am advised that it would be better if you did.
MR VALLY: Thank you Archbishop. Archbishop my argument is the shell as set out in 33.1 c is directory rather than preemptory or mandatory. There is an option in that traditional view used to be that provisions which are mandatory must be strictly complied with and in cases where provisions are directory it will suffice if there has been substantial compliance. The changes in approach in modern law is such that in appropriate cases there is sufficient compliance with mandatory requirements even when there is not exact compliance is sufficient. How will we determine this? Again I do not want to go into detail because I believe we are ad idem on this issue. In this case a provision which is cultured in positive language and in which no sanction is specified for non-compliance will generally be presumed to be directory. Which I submit this provision is and I have got case authority to support me on this issue.
The other aspect is if insistence for the need for strict compliance will lead to injustice the provision will be construed to be directory. Again in this case Professor Haysom in making his submissions will want his submissions to be made publicly so that there is no suggestion of any kind of influence being brought upon us.
And finally the history of legislation may shed some light on the matter. As we are very clear in our Act in Section 33. 33. 1 a says the hearings of the Commission shall be open to the public and then it has a proviso when it should be in camera. So the arguments for whether it should be held in public or in camera are such that in the context it is merely directory and in view of our mutual interest being such that this matter should be argued in public I submit that the matter can be heard in public, the argument about whether it should be held in camera or not. Thank you Archbishop.
CHAIRPERSON: Thank you very much. I would say that we ourselves are relieved that the particular application is going to be heard in public because of our own very deep commitment to a blessed thing called transparency. So over to you.
MR HAYSOM: Mr Chairman what I would like to do is to indicate to you what areas the three of us will be covering. I would like to address you specifically on the proposal we want to put to you and what we believe is the really cast-iron logic which underlines that proposal. But that proposal rests on a particular concern, a particular concern of the proliferation of the weapons of mass destruction. And Mr Minty will speak as an expert of long-standing of many decades on this topic. He has had an enduring concern with the question of proliferation of weapons of mass destruction. And Advocate Gumbi will address you also on the question of the importance of our international relations and the obligation to maintain our international commitment in this regard.
Perhaps I should start off by saying firstly that we appreciate the opportunity that has been given to us to make this particular proposal. But I also need to record our appreciation of the efforts that have prior to this application gone into attempting to meet one another on an appropriate process that would safe guard the Commission's interests and safeguard our own interests. And I need to indicate a little bit about that, of the history of those negotiations. And without going into any detail I might say that for some time members of the government have been meeting with members of the TRC. Particularly with a view to addressing certain concerns. Some of those concerns have dropped out of the picture.
But the pre-eminent concern has always been the danger that a hearing such as this would lead to the proliferation of the technologies of mass destruction. In the course of those discussions, although the proposal we are now going to advance was originally proposed, we had commenced work on examining a proposal which would allow for let us say certain documents, certain areas not relevant to the enquiry or not essential to the enquiry to be excluded. And that fundamentally relied on experts evaluating much of the documentary evidence and in the course of that classifying some of them as documents which would indeed constitute or might constitute a threat of proliferation of the technologies of mass destruction. Some which fell into an intermediate category and some which the experts felt because this is not a matter, I am afraid, in which many of us can address without a level of background in chemistry.
On evaluation of those proposals concerns were expressed to the government by the council and in person by Mr Minty that a mixed enquiry would not deal with deep flaws in that process. Particularly as regards the dangers of proliferation, of information which could be construed as proliferation of the technologies of mass destruction. What is evident is that the TRC were sensitive in those negotiations to the concerns that an enquiry such as this could not be as it were held in a cavalier fashion regardless of the concern over proliferation. Whether the mechanism eventually proposed would meet those obligations is why we are here to address you on what we believe is a process which will address those flaws.
May I just start off in putting forward the proposal by emphasising that this is not a matter in which we are going through the motions to be seen to be dealing with an issue in respect of which we have an international obligation. It is a serious and well-founded fear about serious commitments which the country undertakes in regard to the question of proliferation. Mr Minty will address you in due course but I need to emphasise that the question of proliferation of weapons of mass destruction arise from the government's commitment to a panoply of international agreements, a set of agreements in which the many, many nations of the world have come together since 1930 and collectively known as humanitarian law and which deal pre-eminently with an attempt by mankind to deal with the technologies of mass destruction. And I they break down into two or three important categories. And quite frankly I think that the steps in regards to land mines falls within that broad category of humanitarian law and are obligations under those agreements also for similarly or thought to be treated in a similar way as our obligations not to proliferate chemical and biological weapons. These concerns are expressed seriously in South Africa, this commitment that it is found effect in legislation which established the council and which imposes obligations on citizens which Mr Minty will clarify. It is regarded as one of the most important commitments which South Africa has to prevent the proliferation.
Out of that concern comes the proposal that the hearing should be conducted in a way which places a sieve, as it were, on those hearings to prevent leakage or exposure of the technologies of mass destruction. South Africa is not unique. This is an obligation held throughout the world. And our proposal would run something like this, and this is that the enquiry, including the cross-examination of witnesses and the leading of witnesses and the production of documents, should be held in camera. We would ask you to use your powers in terms of Section 33 to do so.
What we are suggesting then is that the record of that enquiry, the verbatim record is released to the public. We are not asking in any way for the enquiry to be curtailed. In fact I am going to argue that our proposal will lead to a fuller enquiry than that proposed by the, in the TRC proposal. And all we are asking is that the information not be disclosed.
On the contrary our proposal is that the record of that enquiry be made public with one caveat. That the TRC, no other body, that the TRC makes a decision before the release of that record as to whether there is information contained in that record which would amount to a breach of our obligation not to proliferate the technologies of mass destruction. So we are not asking for a simple in camera hearing in order to keep matters out of the public eye. We need to emphasise that we want the fullest possible enquiry without limitation. We want that enquiry and the record of that enquiry to be made public and we want it to be made public not only in your report but as a record of this enquiry.
If there are no matters in that enquiry which would meet our obligation not to proliferate then the verbatim record goes out. If there is matters and either the council or another party is able to persuade you that there are certain matters which should be excised from that record then a considerable harm will have been averted.
In only a week or two ago if someone had put this proposal to me I would also have been relatively sceptical because the natural response is to see that what is being advanced possibly is an attempt to hold in camera an enquiry into very serious matters, and to do so in a way which may protect by failing to disclose those involved what took place. And I think that certainly in my case that view would have been largely shaped by the fact that I never properly understood and properly appreciated our commitment to the non-proliferation of the technologies of mass destruction.
What I need to emphasise is certain features of this proposal. It may be a little bit repetitive. Firstly, we make this proposal in public. We do not make it in camera because we want it clearly understood that we are not looking to hide abuses. We are not looking to construct a procedure in which the public would not have the fullest access to the enquiry and the results of that enquiry. We do not want the media or the community to believe that this application rests on the manipulation of the three of us or government by those who would want to hide that enquiry. It is based on government's concerns independent of what took place in the programme.
And I need to say that we do not and cannot address you fully on what took place in the programme because we do not know. That is for you to decide. Nor can we address you fully on what are the issues that are going to come before you. Nor what matters will be the subject of cross-examination by your legal team. Because and I believe quite properly we have not sought to obtain information from the TRC as to where the enquiry is going. Our application is irrelevant to the actual issues which are going to come before the enquiry. Our application says keep this whole matter under camera until you have an opportunity to excise or at least examine what is in there and then produce it to the public.
The opposite proposal, let us say the one that along the lines of which we are beginning to find each other before a close examination revealed it was a flawed one would effectively bar certain documents from the enquiry in the interests of non-disclosure, those which would likely to lead to proliferation. Would either limit cross-examination if those issues were raised or allow the matter to move into camera to deal with it. And as an issue you have got to confront it because the witnesses themselves are going to raise those issues. They are also going to raise issues around Section 118 of the Defence Act or they may do. The greatest weapon you have to ensure a full and unshambled enquiry is to hold it in camera so that questions can be proceeded with and answered without reference to considerations of non-disclosure of the document for any other social purpose.
So what we are suggesting is that the partial or mixed enquiry where people can raise issues and then the matter would move into camera would lead to a disjointed enquiry, it could lead to a partial enquiry. It would inevitably lead to certain documents not being led because they would lead to applications in camera. And quite frankly many of the documents that do constitute a danger are not material. But much more fundamentally, and quite frankly we have raised this in our discussions and have never had an adequate response to it, you are not in control of that process. You cannot say: "We will be vigilant." The witnesses themselves can rely on documents which constitute a danger, which threaten to proliferate, which threaten to reveal the technologies of mass destruction.
Even documents which on the face of it do not do that may require corroboration and explanation and we understand that may be the case by reference to documents which in passim or directly do reveal those technologies. So what we are suggesting is that the process that allows, which is mixed, which allows you to deal with matters of concern by moving into camera or moving out of camera or by excluding documentation is disruptive. It limits, it self-censors your own enquiry. It is not the best mechanism to get to the truth, which is your fundamental concern.
And the proposal we are putting to you is one which is more effective at getting to the truth, an unshambled investigation without witnesses being able to manipulate disclosure issues in order to move issues off the table or to move into camera.
There are other dangers in the proposal. You have no control over the cross-examination. Even the issues in respect of which we can agree to keep certain documents or that certain documents should be removed. In other words an agreement between, as it were, the council or government and your legal team, does not preclude the documents which the witnesses may lead. Documents of which you have not had sight of, of which you are unaware but which constitutes at least part of those documents which Mr Minty has indicated to him unquestionably would be a source of concern to the council.
If I could just dwell on at least one of those issues. It may be possible, let us hypothetically say that witnesses will want to introduce material which we call proliferatable material, material which leads to proliferation. They may want to manipulate this issue of proliferation either by increasing their own status or increasing the importance of what they are doing. Or else to suggest that the allegations made against them are untrue but reveal what they were involved in relate to issues which would not ordinarily be disclosed. So again I am just underlining a point that I believe the TRC cannot control a process which is held in open but which seeks to sieve out the dangerous technologies of mass destruction.
We do not know exactly what is going to be traversed. What we do know is that a number of scientists are going to be questioned closely about their work in the manufacture of weapons of mass destruction and they will be questioned closely as to whether they were actually involved in that. What the purpose of it was and it appears from the documents they may be asked or to suggest to them if they were not working on this weapon but on another weapon. And it seems to us really obvious that there is a possibility that you will be traversing in the course of your enquiry the technical information which relates to the technologies of mass destruction.
I want to just emphasise two aspects. It is government policy to support the work of the Truth Commission. You have before you three people who collectively spent several decades in uncovering human rights violations. But you have here pre-eminently Mr Abdul Minty who for decades was directly involved in uncovering collaboration with the Apartheid government in the fields of manufactured nuclear weapons in a chemical and biological. And he was head of the world campaign. He does not come here lightly to cover up abuses. He does not come here to cover up abuses at all. And for that reason I want to emphasise that the proposal we are putting before you is firstly designed to have a better and more thorough enquiry and we make no proposal which would limit your enquiry. In fact our proposal is one which is an improved model of enquiry delivery.
But secondly, the second aspect, the second leg of the TRC business is transparency, is reconciliation through publication. If you have a better enquiry and that enquiry is released to the public you also having a more transparent enquiry. So we would take offence at the suggestion that we are seeking to cover up because that is not so. We are simply providing an opportunity at the end of the enquiry, the only way in which you can have an effective mechanism to sieve out the dangerous material. It may well be that there will be allegations that some of the stuff should be sieved out but it is your decision. We are not asking in advance for any coverage. We asking only that there be an opportunity at the end to persuade you that there are elements which should be excised.
So the TRC is in control of the process both now in deciding if it goes into camera and eventually if it disregards the argument that there is dangerous and technical information which could lead to proliferation it itself will decide. It will make the decision to excise that material. And if it disregards it.
CHAIRPERSON: I was suggesting that you are true to yourself. You said you might be repetitive, you have made these points and I am sure we have all taken good note of them. Thank you.
MR HAYSOM: Thank you Mr Chairman.
ADV POTGIETER: But Professor Haysom can I just ask you, I am just trying to understand. Does the issue that you raise does that relate to the technical side of what is before us? Or does it also relate because you see we have got a whole array of witnesses.
MR HAYSOM: No it relates to the technical stuff.
ADV POTGIETER: Is that so?
MR HAYSOM: Ja.
ADV POTGIETER: Because some will be talking about the management of this process, not necessarily about the technical side of it.
MR HAYSOM: I would not want to preclude an issue which somebody may want to raise at the end of the day but speaking before you as I do now it would seem to me that the question of the management, financial systems of abuse of human rights violations are in fact what the Committee was doing. In fact what the programme is about in any abuse. It is not an issue which would contribute to proliferation. An uncovering of abuse cannot proliferate. The only thing which would proliferate is the revelation and many of the documents before you, will be technical documents. They will explain the compounds, how they were synthesised, maybe improvements in the synthesis of those documents. That is the obligation which South Africa has. Remember South Africa, that the current government may well not be the author of those technologies. We are not even arguing that, that technology constitutes an important asset which needs to be protected, which is certainly an issue which has been raised before. We are arguing that as the guardians of that technology we have international obligations as to how we deal with it.
ADV POTGIETER: Alright then it is only in respect of that portion, that aspect of the hearing that you are proposing that we should impose a blanket sort of in camera process?
MR HAYSOM: Yes. What I am suggesting is that this thing cannot be regulated by spotting. You cannot isolate, we will conduct this every scientist may in the course of his own defence and he is entitled to explain anything as fully as he wants, rely on the technical information and the purposes of the project or the purposes of the technologies they were involved in. He will have to traverse some of the technical information.
ADV POTGIETER: I think I understand you.
MR HAYSOM: So what we are saying is you cannot leave it to chance. There are just one or two issues I just want to emphasise at the end there. Lawyers frequently talk about, what we are not talking about is embargo, we are talking about a temporary embargo. The only inconvenience is to the journalists and it is a temporary inconvenience. They have arrived here today whereas they are going to have to come back here next week and get the transcript. And I am saying that what is at risk, what is at risk is so important that many inconvenience to the journalists getting it this week as opposed to next week really cannot constitute sufficient cause to hold this matter in camera and then try and balance it and try and make rulings and allow lawyers to jump up and say "No that should be in camera, that is a proliferation issue," and so. So on the balance of convenience we want to argue that our proposal is the better one. If there is a matrix a other way I would put it in the danger of contravening Mr Ntsebeza ruling, if there was a matrix and there were three objectives there would be truth, there would be transparency, publication, reconciliation. That is the second one. And thirdly there would be the dangers of disclosure. The proposal we make gets full marks on all three. The proposal to hold it in camera does not satisfy adequately the rigorous search for truth requirement. It does not and as a consequence meet the other proposal in regard to full publication because you have got a truncated enquiry. And then obviously it does not deal with the dangers posed by the material with which you are dealing. You yourselves now are going to be the ones in the position of the government. I need to say that it is impossible for the government to abuse Section 21 a to hold this matter in camera, to enforce the in camera holding. Section 21 a of the non-proliferation of weapons of mass destruction Act which specifically empowers the minister to order an in camera hearing in respect of any proceeding other than a court proceeding which is likely to lead to the proliferation. We do not want to approach that because it seems to me evidently a matter which is to be decided by the Truth Commission itself. You are co-responsible now for the technologies which are going to be placed in front of you in the course of these proceedings. Mr Chairman I had indicated that Mr Minty would then, would want to address you on certain of the other issues.
CHAIRPERSON: Can I just find out it may be that some of my other colleagues wanted to get some clarification from you, others jumped the gun. Thank you very much. Professor Abdul?
MR MINTY: Thank you Chairperson, Commissioners and members of the panel. I appear before you in my capacity as Chairperson of the South African Council for the non-proliferation of the weapons of mass destruction, a statutory body established by the non-proliferation of weapons of mass destruction Act of 1993. I assumed responsibility as a chairperson in July 1995.
Under the 1993 Act the council has very wide responsibilities and under the section describing the functions of council article 6.1 states: "The Council shall on behalf of the State protect the interests, carry out the responsibilities and fulfil the obligations of the Republic with regard to non-proliferation." Then in article 6 subsection 3 it states:
"In order to achieve its objectives the Council may
a. control and manage all activities relating non-proliferation and provide guidance, instructions and information in connection therewith.
c. Supervise and implement matters arising from international conventions, treaties and agreements related to proliferation affairs entered into or ratified by the government of the Republic.
d. obtain or promote the co-operation of departments of State, other government institutions, representatives of any branch of commerce and industry and other persons concerned."
And then it goes on to state under article 6.3(q): "Take the necessary steps to prevent the contravention of the provisions of this Act."
Chair the subject matter that we are concerned about deals with chemical and biological agents and introduces the grave risk of disclosing information that could result in the proliferation of weapons of mass destruction. When we speak of weapons of mass destruction we have in mind nuclear, chemical and biological weapons which pose enormous dangers not just for soldiers or other combatants but for millions of civilians and indeed for humanity as a whole. The fact that we are concerned today about the possible proliferation of weapons of mass destruction places this matter in a special category where the international community has judged it to constitute not only a threat to international peace and security but to the very survival of life itself on our planet. We cannot therefore speak lightly about the risk of proliferation of weapons of mass destruction. It is a very, very different category from dealing with the category of small arms or other conventional weapons whether they are tanks, frigates, fighter planes or anti-personnel land mines.
Lest there be any misunderstanding let me reassure you at the very outset that in seeking an in camera hearing neither I nor the Council wish in any way to interfere, limit or affect the submission of all relevant evidence or hamper the investigations of the TRC regarding South Africa's chemical and biological weapons programme. Indeed since there is substantial sensitive information which in any case cannot be dealt with in open hearings it would in fact better facilitate the work of the Commission to have a thorough, in-depth and comprehensive investigation in camera so that all the issues can be addressed without any restraint of concern about the risk of proliferation.
Once the investigation is concluded the TRC can decide to disclose all information which does not risk the danger of proliferation. There should be no reasonable objection to an in camera hearing and the investigation which is for the purpose of preventing the proliferation of weapons of mass destruction.
In speaking of proliferation let me be precise and quote the 1993 Act and states under article 1.3 that: "Biological warfare agent means living organisms including viruses or infectious material derived there from which can be used to cause diseases or death in humans, animals or plants and which usually depend for their primary effects on their ability to multiply on the organism attacked."
And then article 1.5 states:
"Chemical warfare agent means any chemical regardless of the origin or method of production thereof which poses a real or potential risk of being used as a weapon of mass destruction and which through the specific application of its chemical action on life processes can cause death, temporary incapacity or permanent harm to humans, animals or plants."
Chair why do we appeal for an in camera hearing in order to avert the risk of proliferating weapons of mass destruction? The disclosure of information that could result in the proliferation of chemical or biological weapons would constitute a serious contravention of South Africa's obligations as a leading state party to the chemical weapons convention and the biological and toxin weapons convention. As a state party to the CWC, the Chemical Weapon Convention, South Africa has undertaken not to-
"...develop, produce, otherwise acquire or retain chemical weapons or transfer directly or indirectly chemical weapons to any one." And not to "assist, encourage or induce in any way anyone to engage in any activity prohibited to a state party of this convention".
In addition article 7 of the CWC requires South Africa to -
"prohibit natural and legal persons any where on its territory or in any other place under its jurisdiction from undertaking any activity prohibited to a state party under this convention. Not to permit in any place under its control any activity prohibited to a state party".
And to -
"...extend its penal legislation to any activity prohibited under this convention undertaken anywhere by natural persons possessing its nationality in conformity with international law."
The very clear and specific requirement not to proliferate on any front exists in the words "or transfer directly or indirectly chemical weapons to anyone." The obligation accepted by state parties to this convention is that each state will "never under any circumstances" allow proliferation. In terms of article 3 of the biological and toxin weapons convention South Africa has undertaken together with other state parties- "...not to transfer to any recipient whatsoever directly or indirectly and not in any way to assist, encourage or induce any state, group of states or international organisations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in article 1 of the convention."
Chair once again the clear obligation not to proliferate exists in the words "not to transfer to any recipient whatsoever directly or indirectly." Besides the fact that any proliferation would constitute a grave breach of our international legal obligations arising out of being a state party to the two international conventions, such proliferation would also contravene (a) the South African non-proliferation of weapons of mass destruction Act 1993. As well as (b) the declared policy of the government on the non-proliferation of weapons of mass destruction.
The 1993 Act was promulgated -
"to provide for control over weapons of mass destruction and the establishment of a council to control and manage matters relating to the proliferation of such weapons in the Republic."
Despite the comprehensive mandate of the Council the question of proliferation is considered to be so serious that the 1993 Act with regard to confidentiality states in article 21.2(a):
"If the minister is of the opinion that the disclosure of certain information may compromise the functions of the Council or the interests of the industry he may direct that any proceedings excluding court proceedings be held in camera."
Like all state parties South Africa has to take its international obligations to treaties and conventions seriously and ensure that nothing is done to undermine or violate them or to jeopardise the maintenance of international peace and security. We should not approach the grave matter of proliferation in such a manner as to raise doubts or concerns about democratic South Africa's commitment to solemn international obligations. We need to be seen not like in the past when the regime acted as an outlaw violating all basic norms of international behaviour but as a new member of the international community that acts as a good and responsible world citizen which will honour and comply with the letter and spirit of our international obligations.
If states unilaterally decide to act in a manner that involves risking proliferation it would not only seem to undermine the provisions of treaties and conventions but also raise questions about the good faith and reliability of those states. Of course any breach of the provisions of treaties and conventions would also create concerns about the value of specific safe guard provisions which are often agreed in painstaking multilateral negotiations on issues that affect international peace and security.
Full compliance with our declared policies and national legislation as well as with international treaties and conventions is critical and there must be no doubt as to whether through our legitimate consideration of human rights violations we are prepared to risk the proliferation of weapons of mass destruction. Democratic South Africa has inherited a terrible legacy including everything associated with the costly and destructive development of nuclear weapons. We are the first and so far only country that has given up nuclear weapons. And in August 1994 the cabinet decided that South Africa should
1 - Be an active participant in the various non-proliferation regimes and supplier groups.
And -
2 - adopt positions supporting the non-proliferation of weapons of mass destruction with the goal or promoting international peace and security.
Chair democratic South Africa is today recognised by members of the non-aligning movement and the OAU as well as by the developed world and the nuclear weapon states as a major player in matters of global disarmament and non-proliferation. South Africa has the standing and the capacity to promote dialogue and interaction at a global level often regarding issues which have hither to divided the north and the south. And our initiatives have led to consensus being reached on the extension of the nuclear non-proliferation treaty which was subsequently followed by Africa declaring itself a nuclear weapon free zone. We are members of the NPT, the CWC and the BTWC. Three areas relating to weapons of mass destruction.
CHAIRPERSON: What are all those?
MR MINTY: The first one, the NPT is the nuclear non-proliferation treaty, the CWC is the chemical weapon convention and the BTWC is the biological and toxin weapons convention.
CHAIRPERSON: Thank you very much.
MR MINTY: South Africa Chair is also a signatory to the comprehensive nuclear test ban treaty often described as the CTBT and is an active member of the conference on disarmament in Geneva. South Africa is the designated permanent member for Africa of the Board of Governors of the International Atomic Energy Agency, IAEA in Vienna. South Africa has been participating actively in the preparatory commission for the prohibition of chemical weapons and our ambassador in Geneva played a leading role in the preparatory commission of the comprehensive test ban treaty organisation. We are regarded as one of the leading participants in the negotiations of the BTWC, the Biological Toxin Weapons Convention ad hoc group mandated to establish an effective verification protocol for the convention.
I should perhaps point out that the strictest convention that we have with regard to weapons of mass destruction is really the Chemical Weapon Convention. The nuclear non-proliferation treaty has not outlawed nuclear weapons and the biological and toxin weapon convention also does not have proper procedures for verification.
In addition Sir, South Africa is also a member of the nuclear suppliers group and the Sanger Committee which deals with nuclear matters. As well as the Missile Technology Control Regime. In all these and other groupings and structures democratic South Africa plays a major role in efforts to make our world a safer place and our full compliance with our international obligations not to proliferate have never been brought into question. Add to this the central role played by South Africa in chairing the Oslo negotiations which resulted in the adoption of the international treaty to ban anti-personal land mines and it is then possible to acknowledge how seriously and successfully we are discharging our responsibilities to promote global disarmament and non-proliferation.
South Africa's reputation has not been built on rhetoric or general statements about good intentions but on concrete achievements involving highly complex technical and painstaking negotiations through which we have demonstrated not only our commitment but also our capability to make a solid contribution to promote international peace and security.
Chair all these achievements and our future role in global negotiations can be undermined if the international community is to perceive us as not acting with the responsibility in a matter as grave as risking the proliferation of weapons of mass destruction. In asking therefore for an in camera process the Council is not in any way preventing the TRC from obtaining all the evidence and conducting a thorough investigation but simply requesting that precaution is taken not to risk proliferation in breach of our national policy and legislation and our solemn international obligations. Thank you Chairperson.
CHAIRPERSON: Thank you very much. Any preliminary questions from yourselves? No? Thank you very much Abdul. There was a suggestion that maybe you might let some 10 the copies of your "dinges" be made available.
MR HAYSOM: Yes in fact we can take steps now to have them (...indistinct)
CHAIRPERSON: Thank you. Advocate Gumbi? Obviously all three of you, your submissions I did not ask you because Professor Haysom you did not look like you had a typed script.
MR HAYSOM: No Mr Chairman I did not have a typed script. Both of us were really asked to assist in this matter over the weekend and we have not been able to (...indistinct)
CHAIRPERSON: Yes so I was not discriminating against you. Advocate?
MS GUMBI: Thank you Chairperson. I must say that of the three of us Mr Minty has always been the better organised one. Chairperson very, very briefly I think from what Mr Minty has said it is quite clear that South Africa has taken a leading moral position on matters of non-proliferation. There is no doubt in our mind that there will be quite a number of competitors for that position. And if South Africa is found to have acted in a manner which results in some proliferation in terms of international obligations and international standing it will be very easy to then discredit us in carrying out this policy that Mr Minty has outlined. We have several agreements on confidentiality with many countries relating to this issue.
And Chairperson I really want to address you on the issue, when I say we have the irony of this case is really not lost on us nor on the government. As Professor Haysom said Mr Minty and many others fought very hard to expose some of the activities of the previous government. Fought very hard to ensure that the United Nations and the world community adopts certain measures against the previous government.
The irony of it Chairperson is that it is this government then that has to act in a manner which suggests the protection of those past transgressions. Chairperson the members of the Commission would be aware of many other instances where we have had to go through very painful negotiations on our part which were interpreted as seeking to promote or protect the activities of the previous Apartheid State but which negotiations placed certain obligations unfortunately on this government.
Now we are here talking about activities and programmes that were conducted by the previous government but which as a result of the peaceful transition that we have place obligations on this particular government. We have cases where we are paying civil penalties, we are paying criminal penalties for activities of the previous government. And Chairperson I have been told that part of it is that we are being punished for having had a peaceful transition in South Africa. Because legally in terms of international law if we had had a violent overthrow or a revolution we would then not necessarily become the legal successor of the previous government which means that we would not have had to pay the debts of the Apartheid government for programmes or activities that were directed at us in the past.
We therefore stand here inheriting the sins of the past but which placed certain obligations on us to act as a responsible member of the international community. Chairperson we occupy a specific place in the international community in disarmament.
Part of what Mr Minty was saying was that when the non-proliferation treaty had to be extended South Africa put proposals on the table, a statement of principles which finally brought all the member states around an agreement on proliferation. When those negotiations took place in New York it was clear that there were two terms that were at loggerheads. But we put a proposal on the table which finally got a consensus agreement and a commitment to disarmament eventually. And the reason we were able to do that was because of the way in which the new government has acted in matters of non-proliferation.
We or the South African rather, Chairperson, would really want to continue to take a leading role in matters of non-proliferation, in matters of chemical warfare, in matters of disarmament finally. And for that reason we would not like to lightly be accused of ourselves ignoring those international obligations. We would therefore Chairperson ask the Commission to pause and reflect as you have done in the past when you think about the questions of is this a protection of past activities and to really say to you that as I have said that it is very ironic that we are here to put that case before you.
Finally Chairperson, whatever the decision that the Commission reaches on this matter we would plead with the Commission to give us an opportunity to reflect on that decision before the next step is taken as a government and to reflect on what steps may be taken depending on the decision that you reach. Mr Minty here would be the first one to slap us with an order and those steps Chairperson are not going to be steps that would be out of line with what the Commission decides. I mean it may just be a letter that is sent to Vienna to say well as a government this a position that we took in order to comply with our obligations and we would ask for that opportunity to reflect. Thank you Chair.
CHAIRPERSON: Are there any questions you want to ask? Dumisa?
MR NTSEBEZA: Thank you Chairperson. I just want to ask from the representative of government, any of the three of you on the question of the media. I think your proposal in a large measure satisfies only a section of the media, the print media. In the sense that if we are to be inclined to fall in line with your proposal and to the extent that a transcript would be made available to journalists it would assist in a large measure the print media. But the electronic media in the form of radios, certainly in the form of television would be disadvantaged by that. Would you have any ways in which you think that can be accommodated if it can be accommodated within the framework of your proposal?
MR HAYSOM: Essentially I understand your point to be that if you were to conduct an enquiry over five days you would have regular sound bites and television footage and there would be visibility. Whereas in our proposal the journalist would get too much of it in a rush. They would get a comprehensive report or a comprehensive summary. That may well be the case but I think that there are ways also of dealing if this enquiry is going to be and traverse the issues it intends to traverse it is possible to deal with the release of the document over several days for radio journalists to deal with it perhaps comprehensively and more effectively because it is done when looking at the total picture of whatever emerges rather than in a day by day basis. But I am not sure that one can go so far as to say is because people will get one full picture as opposed to bits and pieces there is prejudice, sufficient prejudice to radio and print. Certainly the fact that it is coming out in the form of a transcript does not preclude it being released in a way which gives at least some visual images and allows radio journalists to comment on it as they would normally do through commentary and interviewing people on the nature of, on the evidence submitted. And even interviewing the people who gave evidence because they will now have that evidence in front of them and they would be in a position to approach them.
MR NTSEBEZA: How would we accommodate television journalists who would like to have footage of the witnesses as they testify in respect of those sections. Let's say for instance at the end of the five day period where there be, were there a mechanism in terms of which we could capture this whole thing on video as well. I am not addressing that. I just want you to reflect on it. Now what happens at the end of the period where we say okay we are satisfied, that is the decision one has to make, we are satisfied that all of these images have nothing to do to proliferate, with proliferation. But you know if it is held in camera I would assume that there would be no television cameras, there would be no photographers and what goes to the transcript would only be recorded in the mechanical recorders. I just wanted some creative ways in which you think you can suggest as how we could accommodate the media.
MR HAYSOM: The fact that it is in camera does not preclude a full tape transcript of the proceedings subject only to the same remarks which would be made in respect of the transcript. In other words if there happens to be an application for an excision of a particular document or a particular chemical formulae and you agree to it then that same excision could be made in the tape recording. And I would understand that you do keep full tape recording of the proceedings. There is nothing to stop the same process, in fact I had assumed that there would be a full TV transcript of the proceedings and the same remarks would apply. So we think, you know that would be a process of dealing with all those particular objections.
MR NTSEBEZA: I just wanted it to be on the record. You will be surprised.
CHAIRPERSON: Any other questions for the panel. Hanif is there anything that you want to say?
MR VALLY: Yes thank you Archbishop. I will be very brief in my response Archbishop.
CHAIRPERSON: Thank you.
MR VALLY: Archbishop firstly let's quickly talk about the Act. This is the Act which Mr Minty quoted extensively, non-proliferation of Weapons of Mass Destruction Act number 87 of 1993. The Act defines non-proliferation as meaning the non-proliferation of weapons of mass destruction. Now this is of importance to us. What we are accused of potentially doing if we have a public hearing is proliferating weapons of mass destruction. We will not be doing so, period.
Similarly Mr Minty has quoted a number of international conventions. Most important of which is the chemical weapons convention. Having looked at those we are not in breach of any of those regulations or any of the provisions thereof. South Africa has signed, ratified and incorporated it into our domestic law. Again there is no specific section which anyone can point out to that we are in breach of by having a public hearing.
We are not insensitive to these issues. We have been proactive on this issue from the outset. This hearing is two years in the making. Leading up to this hearing Archbishop we have proactively approached members of government, we have negotiated various issues and we have discussed aspects to the extent of agreeing to withdraw certain documentation from this hearing and making an application which I intend making after this issue has resolved that certain documents do not go out to the media. This is documents with formulae, etc. We are not interested in the details of manufacture or formulae but we are interested in the facts of manufacture that certain things were in fact made and more important were they in fact used. In trying to do this because the definition of non-proliferation as I have just quoted to you does not really help us, we worked on two principles.
One, where technical details appear that will appear others to produce the weapon concern, we agree the technical detail be withheld from the public proceedings.
And two, those documents which represent official exchanges between South African and foreign governments should not form part of the public proceedings. That is a test we used. And on the basis of that test we have withdrawn certain documents which we will not use at all and there are certain documents which after this issue has been resolved we will ask the panel to in terms of Section 33 exclude from public distribution.
This we reached after a long series of negotiations. We did not do this in isolation. A long series of negotiations with Mr Minty's department and other people. Again I want to emphasise we are not averse to the concerns being raised and we are respectful of meeting those concerns. But we do not believe that a public hearing is going in any way proliferate weapons of mass destruction.
On the contrary we are of the opinion that the very fact that we have this kind of hearing is because secrecy breeds proliferation. There is a very important argument internationally that the more these kinds of issues are aired and aired publicly the better chance of non-proliferation. Rather than these things being kept secret. Now I have a respect for many human rights conventions and also humanitarian conventions like the chemical weapons convention is but there is some aspects of it we do not always agree with. Now I am not saying we are in breach, understand this.
I just want to make one small point. If you use teargas in terms of the convention against forces outside the country you must report it. If you use teargas on your own people you do not have to report it. So what I am saying is those conventions are for the interests of states as well. They do not always interact and be responsible towards people of their own countries. Why I am saying this is I am saying that the watch dog on proliferation is not necessarily an outside agency. It is an agency like ours, a Truth Commission which is one of the building blocks of democracy in this country. And why do I say this? We are obliged in terms of our Act to advise the government of what steps should be taken to prevent the future violation of human rights.
And the very fact, and I say this with not total confidence because we have been slapped around by them a little as well, but the very fact of our public and transparent hearings and the conveying thereof by the media has resulted in this unique interaction with our community which I would submit has had an impact on the psyche of our country. And we need to continue with that transparency and interaction which is through the medium of direct and immediate conveying of what is happening through our processes and what we are in fact discovering. Any suggestion of an in camera hearing and then going public will raise concerns what is being concealed, what is not being concealed.
If we openly exclude certain things with the principles in mind that we do not want to proliferate any weapons of mass destruction or let out any formulae, we have gone much further, let out any formulae which may lead to any drug, etc or chemical compounds being manufactured by any person, we have agreed to exclude.
We must also examine the history of our Act. There was a time when the Act was in its drafting stage there were attempts to close certain hearings to the public and there was a massive uproar by NGO's forcing parliament to change its attitude, resulting in Section 33 being included as part of our Act. Section 33 clearly says that our hearings must be public and transparent with the proviso about certain in camera hearings.
Now what are we talking about, why do we want this in public? We want to show and this will be possibly led through evidence and we hope we can get all the evidence forward, to put it forward but some of the evidence we want to lead is some of the things that happened under the guise of a chemical and a biological weapons programme, and I say guise. What kind of chemical and biological weapons programme produces thallium in beer, sugar with salmonella, whisky with paraquat, baboon foetuses? One can go on. This was part of our chemical and biological weapon programme. What kind of chemical and biological weapon programme is one which is involved in examining fertility rates of black women? Very sinister stuff. And this is what is going to come out we hope in the next few days of hearing. And this is very important for the community to hear in a public hearing openly and transparently.
Just two brief issues I want to finish off with, Archbishop. The one is we live in a new era of information production and accessibility. Just playing on the internet we have got the formula of serrin, of mustard gas, of somen gas. We have got the formula of CR gas which is supposed to be a very important breakthrough for our chemical industry. There is even information here on basic rocket bomb, multiple warhead rocket bombs. This is on the internet. That is the first issue.
The second issue is the names of the persons who are being called as witnesses are already known through the media. They have been widely reported upon and so there is no secrets there as such.
So we are not coming out with any information which will in any way and I say this with respect, impact on our international treaty obligations. The issue then is this and I am, you know with respect to Mr Minty he has quoted a number of the obligations and we were proactive. We in fact went to the proliferation Council, we obtained all our relevant international conventions and our obligations therein and we examined those. We talked to international human rights NGO people who are involved in this particular area to get their views and they do not feel that by holding this hearing we will be proliferating.
I just want to conclude by saying what is the concern. The first concern is we will breach our international conventions. No proof of this and I respectfully submit we will not.
The second one is our hearings may be abused by witnesses to proliferate. I do not believe that this panel will not be able to stop such proliferation if it at all happens. I believe that if there is going to be any sensitivities around those issues and the panel has been sensitised they will be in a position before someone blurts out anything, to stop them.
And thirdly that the hearing may be disruptive. That is par for the cause. We have had a number of hearings where people exercised their rights in terms of the Act, raised objections, raised additional points, etc. That is what we are used to and there is no guarantee that those sorts of disruptions will not take place even if it is in camera. It goes with the terrain. I am trying to see if there is any specific point Mr Chairperson that I have not covered which was covered by my colleagues.
CHAIRPERSON: Learned friends.
MR VALLY: They are my learned friends. In conclusion I would say two things. If there is a commitment to eventual disarmament as a goal then this is a first step.
Number two in respect of, we have heard that there is a bit of a club in terms of Section 21 of the non-proliferation weapon of mass destruction Act which says: "If the Minister is of the opinion," and the Minister we are talking about here is the Minister of Trade and Industry.
"If the Minister is of opinion the disclosure of certain information may compromise the functions of the Council or the interests of the industry he may direct that any proceedings excluding court proceedings be held in camera."
And we respect the fact that I think it was indicated that there would not be, various parties would not be using this section. There has been this request regarding time to reflect, I hope it is simply to send a letter to Vienna or whatever but we are not talking about court applications, especially since we have been involved in negotiations on this issue for over two years. Thank you Mr Chairperson.
CHAIRPERSON: Thank you very much. Alex wanted to say something and then.
DR BORAINE: Chairperson I want to take up only one issue and it is the one that Mr Hanif has alluded to in his closing remarks. Just so that we can get absolute clarity we want to give due weight to all the arguments that we have heard and I, just so that there is no confusion. Advocate Gumbi at the very end of your submission you made a request that if whatever the decision of this panel would be you would like to be informed so that any necessary steps could be taken and you quoted as one of those the letter to Vienna, which certainly is very innocuous. In the course of Mr Minty's and your own presentation you did refer to certain powers that the Minister has and Mr Hanif has just referred to that. Can you tell this panel is there any consideration at all that if the panel should decide that the proceedings will be in public that the Minister or the government would consider taking action by way of prohibiting the TRC from continuing if it should agree to continue in public?
MS GUMBI: Well perhaps I can respond very directly to that to say that the Minister of trade and industry has certainly not been consulted with that in mind to say you know; "Would you or would the government exercise this particular authority?" All we were asked to request was to just give a short, very brief time to reflect on it. And if the ruling should be that the matter should be held in public then the government would try to move towards protecting itself. And that is why I used an example of a letter. You know if you have a disclaimer in a letter then as a member state you may be found not to have contravened your obligations because you have put it on record with the necessary authority to say you know
"We disassociate ourselves from this, this is the position that we put as a government but it is a decision of another body. It is not our decision."
So I certainly am unable to say specifically what is going to happen. All I know is that our principals will be in Cape Town today to hear what the result is and reflect on it.
MR HAYSOM: I have to, sorry can I just add something there. It seems to me also that if you take a decision for example that the proceedings should continue in public that the Council may need to secure legal representation at the hearing to attempt in a fashion suggested by Mr Vally to protect its interest as being the only method left to it in the rough and tumble of the enquiry. So that would be one issue which we have not been able to address.
DR BORAINE: Chair there are just two additional comments I want to make. One a large number of witnesses have been brought to this hearing. Notices have been given, a great deal of preparation has gone into this. It would be extraordinarily difficult for us to delay the hearing. And I do not want to in any way anticipate whatever the decision of the panel may be. We will go and talk about this and think about it very hard. But I have to say also that I am even more concerned now having listened to Advocate Gumbi because there certainly does appear to me, and if I am wrong please correct me because this is a factor we would have to take into account, but it does seem to me somewhat ominous that the principals would have to be informed. Of course that is right but there would be need time for reflection, possible taking of legal advice which sounds as if one of the considerations may be the Minister acting on the powers that he has in terms of the Act of enforcing this hearing to be in camera. And I am not sure of you can give me any assurances now but certainly that would assist us in our own deliberations when this panel is adjourned.
MS GUMBI: Well it certainly was not meant to sound ominous Chairperson or Deputy Chair. It is just that it is very difficult for me to jump into the minds of our principals and try and anticipate which way it would go. You know that this matter has been discussed on several occasions with the man and I think our presentation today as you heard Professor Haysom say was as a result of some real detailed reflection now lately after all the processes that we had gone through to examine the 50/50 approach. You know the joint, disjointed hearing and all that. So I am certain that you can hear some real coherent voice coming out to say we have really now had a reflection on the matter.
DR BORAINE: Can I just reassure you that there has never been a suggestion in any of the discussions that, that kind of power would be brought into place. I think neither of us are in a way to say in which way government would respond but certainly when we discussed it this morning and discussed the need possibly to be afforded an opportunity is actually or particularly related to the need to not take legal advice but to have a lawyer here in the proceedings. Because we are not the persons who are going to sit here and monitor.
CHAIRPERSON: Thank you very much. Dumisa?
MR NTSEBEZA: Thank you Chair. I actually do not seek guarantees from the government. I would be very uncomfortable if I were to be perceived to be acting on a guarantee from government that they will not interfere. My Vally if I could just put the question to you. As I understand the question from the applicants they are not saying that whatever transpires in the course of these proceedings will never be made public. In fact I think that is the (...indistinct) that all the proceedings will be made public when you as the Commission have decided to make them public. They are also not saying that you should not have a full enquiry. In fact they are saying you have decided to self-censor yourselves because you have already decided that certain documentation will not be used because you perceive it to be documentation that might proliferate. They say use the method of an in camera hearing for purposes of using even those documents which you thought were they to be used in public are going to be proliferation. But that it must be your decision at the end of time and yours alone to release whatever you think ought to be released. Without taking the risks of some documents being sprung on you or of human error in the heat of a public hearing allowing certain documents for you only to realise after harm has been done that, that is a document on further reflection that you should not have used. Because in fact it does exactly what you thought it would not do. In other words there can be no guarantee that you could be vigilant and vigilant to an extent that you might be able to prevent witnesses, let alone documents, witnesses from dealing with issues that we are not aware of ahead of time but which you could not stop from circulating throughout the world before you could prevent harm from taking place. That is what I understand to be the essence of their argument. What are you saying to those specific concerns?
MR VALLY: Mr Ntsebeza the first point I want to make is our Act is clear, Section 33 subject to provisions of the section the hearings of the Commission shall be open to the public. That is part of the whole procedure and modus operandi of this Commission. As we enjoined to by parliament.
The second point I want to make is that the documents we are talking about are not documents that we have taken willy-nilly. We have taken a whole set of documents, we have considered it carefully. Thereafter we entered into negotiations with government. And yes we have self-censored ourselves not because we were convinced that these issues would lead to proliferation but to meet the concerns that were raised with us. So we remove some documents from the public domain completely we did not use at all and some documents we agreed and I will make this application to the panel after this is decided that these will not be released to the press to meet the concerns being raised with us.
I have told you our views. Our views are that this information is freely available. And with respect to the scientists involved our opinion is the science is poor. The science is not particularly good.
And then the third point you raised Mr Ntsebeza is the issue of harm by witnesses giving evidence. How much can a person blurt out which they cannot do once they walk out of our doors? If they wanted to do something of this sort then they would have done it. We have already heard stories of certain people going to Libya. Now they wait on a transnet contract, maybe it had nothing to do with chemical weapons. But it is not the fact of them sitting here giving evidence which is going to be the issue of whether they are going to give out information or not. The press is there, there are enough journalists who will be willing to hear anyone whether it is within our premises or outside our premises.
So that issue, with respect that some one in a few minutes will blurt out things I do not believe holds water. I think I have covered all three points you have raised Mr Ntsebeza.
MR NTSEBEZA: But Mr Vally just on what you have said very lastly, do you think that any witness who had been enjoined to confidentiality and actually been ordered by this confidentiality would breach that confidentiality simply because we have no hold over their mouths? Are you suggesting that even if, let's assume that we were inclined to go the direction of having the proceedings in camera and then every witness who came was enjoined and actually sworn to confidentiality. Are you saying that does not matter because they could walk out of here and have press interviews.
CHAIRPERSON: (...indistinct) before. (...indistinct) debate.
MR NTSEBEZA: Can I have a reply?
MR VALLY: Ja it is going to be difficult to say that you will not repeat anything you say here when it is in a public hearing. There will be some documents which we were asked not to be released to the press. But the source of these documents by far the majority if not, by far the majority were obtained from some of the people. They were working with these documents in fact they were found in the possession of some of the witnesses. So this is not new information that we are releasing. But I am not clear as to exactly what the issue is. Thank you Mr Chair.
CHAIRPERSON: Denzil?
ADV POTGIETER: Thank you Chairperson. Mr Vally just as a matter of law do you accept that the obligation not to proliferate overrides the provision in our Act relating to full disclosure public hearings, transparency and so on? What is your position on that one first?
MR VALLY: It is arguable but I suspect simply because apparently there is no provision in our Act which says that our Act supersedes other acts but it is arguable I think it will be question of interpretation. The courts will try and see if you can compromise between the two and if you cannot compromise then they will take the more emphatic provision. But I want to stress Mr Potgieter that we do not want to proliferate. We honestly are committed not to proliferate. And how we are going to proliferate is if witnesses blurt out things. I have not heard anything else. The documents we have gone through extensively with various officials. We have raised (...intervention)
ADV POTGIETER: Sorry, thank you, sorry. No I understand that point, you have made that point. So what we are really talking about is a process, we are in agreement that our proceedings here should not contribute towards proliferation. And we talking of process, how do we cater for that problem? Now the point was raised by Professor Haysom, he said that the question of control in cross-examination for example there is a potential that we might be falling foul of this obligation that we accept not to proliferate. What is your response to that?
MR VALLY: We hoping and we still suggested that the non-proliferation Council as well as the other persons who have concerns about this issue and in fact we would enjoin the panellists themselves. First of all the people with a direct interest and a direct statutory obligation, the non-proliferation Council should have representation where they can stop such things from happening. And secondly the panellists themselves should be sensitive to this issue. That is all I can suggest. I certainly will be sensitive to any notion of proliferation and if I have an opportunity and the issue arises I will certainly also object.
ADV POTGIETER: Thank you Mr Vally.
CHAIRPERSON: Professor do you have any? I gather I have to give you a "woordjie."
MR HAYSOM: Mr Chairman can I perhaps just clarify one or two issues which have emerged. I see the point has been made and I have been rebuked with making it too often but it did emerge again as it emerged repeatedly during our negotiations which is why I repeat it, is that we are not seeking to have the activities of the chemical and biological programme kept secret. We are not allowing you or suggesting that it is up to you as to whether to release it, we are asking you to release all the information about that particular programme.
The second thing is, really the question is what is the most adequate forum in which this particular enquiry can take? And we really put forward the problems associated with an enquiry. And I just want to. You see we have not gone into the details and we do not think that, that would be appropriate here. This is what is going to be questioned, this is what they are going to reply and we do not know exactly where it is going to go. What we do know is this, there is serious difference of opinion between the scientists as to what constitutes proliferation. Your experts would differ from somebody else's experts. So that is a problem in the first instance. So the assessment as to what constitutes proliferation and what should be kept out is itself a difficult problem.
Secondly, as I understand it there are documents and technical documents but some people say this is proliferation and that is not proliferation but even the documents which are not proliferation documents frequently call upon a witness to go back to his laboratory and produce his stuff to prove that it does not have the sinister imputation. And in fact some times to prove that it does have the sinister imputation that he wants to construct in regard to it. It may be alleged that he was doing something, a rogue operation on his own to make money and he may want to come and say: "No, no what I was actually doing was producing this and here is my material." I am not really in a position to say where and what witness and what thing would constitute a danger. All I know is that it is really like rolling the dice.
And our concern and the need to reappraise quite frankly the very helpful work that had been done together between us and your legal team came because of this unpredictable element.
Thirdly, in the course of our debates the issue has been raised the documents have been leaked or there is going to be a criminal trial down the line in which some of the documents would come out. Really it is cold comfort to us to know that certain documents have already found their way into the hands of the press or may have. It is cold comfort that there were documents that some of the potential scientists may have spoken to the press. We are confronted with our obligation to safe guard this dangerous thing, this technology, this information and we have to do the best we have and as I had indicated earlier I think you are in the same position as us.
MS GUMBI: Chairperson just one word to add on that. The obligation is on the government not to proliferate. Now you do not have the same obligation I suppose on leaks. Now the government cannot join that process effectively and become itself the agent which proliferates. That is the difference in Mr Hanif's argument.
MR VALLY: ...(inaudible) different obligation from people who put things on the internet.
MS GUMBI: People who put things on the internet it is not the government. If it is found that in fact it is this government which put those things on the internet then we are going to be censored. So we cannot adopt that attitude at all.
CHAIRPERSON: Thank you very much. I think we all want to have a cup of tea. Witnesses and their lawyers if you went down to our tea room on the 7th floor whilst the panel tries to work out all these conundrums here. And I think if we resumes at eleven thirty we will try eleven thirty. We adjourn.
COMMITTEE ADJOURNS: .
ON RESUMPTION
CHAIRPERSON: Abdul are your colleagues here, have they disappeared?
MR MINTY: No they are still around. They are reflecting.
CHAIRPERSON: We resume.
R U L I N G
The panel has considered very seriously the points that were put before it by yourselves and we do want to put on record our very deep appreciation.
Advocate Gumbi spoke about the ironies of the situation but we would want to stress that it says a very great deal about our country that the State as represented by yourselves could come before a body such as this one to debate and argue for the position of the State when perhaps in the past it might have been slightly different. We appreciate that very, very much and we are aware too of the very important obligations that you have put before us. The international obligations of the State with regard to the matters that have been canvassed.
We believe that a great deal is being said about the kind of society we want to help see established in this land to have what has been a very important feature of the Commission the openness, the transparency, and therefore we believe that the hearing should continue as an open hearing but with the very important caveats that have been entered.
We are aware of your concern about a disruptive in and out of camera, in camera, in public but I can assure you that the panel and those leading evidence are people who are steeled I think and we would very quickly be able to spot situations where some one was seeking to exploit this hearing for nefarious purposes. We would want to suggest that what was mooted by yourselves that if our decision were to be for an open hearing then the State should be represented by whoever they want to choose obviously but certainly some one with legal training. And in order to enable that to happen we will adjourn until two 'o clock. Thank you.
COMMITTEE ADJOURNS
