Secrecy laws raised in Basson hearing

A lengthy argument broke out during the professional conduct hearing of apartheid-era chemical weapons developer Wouter Basson on Thursday when the defence tried to call surgeon general Daniel (Niel) Knobel to give evidence.

Knobel read out a statement notifying those present that, having consulted members of the legal services of the South Africa National Defence Force as well as the state attorney, he had been advised that section 103(7) of the Defence Act and the Protection of Information Act 84 of 1982, prevented him from disclosing classified information or information on military or security matters to unauthorised individuals.

“I have not been authorised to disclose any classified information, I may not lawfully disclose it and it is not my duty to disclose it. Please regard my evidence in light of the limintations imposed upon me by these Acts,” he said.

Knobel added that by law, one may not reveal secret documents. “It applies to all of us,” he said.

“I want to make quite sure I’m not going to be arrested next week because of this.”

The difficulty this poses is that it may be possible to simply raise the sceptre of secrecy if one does not wish to answer questions on a certain topic.

The pro-forma complainant Salie Joubert (SC) strongly objected to Knobel’s statement, saying that it was the first he had heard of this limitation and that he had not seen the statement that Knobel had read out.

Joubert asked that the matter be adjourned until Friday morning so that he could have the opportunity to read the statement and also to consult with the instructing attorneys and the client, the Health Professionals Council of South Africa.

He first said that the prosecution would opt not to cross-examine Knobel at all but then said that even if the prosecution was compelled to listen to Knobel’s testimony, it would not finalise the cross examination but would have Knobel return for cross examination at a later stage, after it had a chance to examine all of the evidence he would be relying on.

“We have to ask if it’s in the interest of a witness to testify on day one and then five weeks later to be cross examined,” he asked.

But Tokkie Van Zyl, lawyer for the defence, was adamant that Knobel give testimony the same day. He said Knobel was simply stating the fact that certain issues — particularly those that concerned his discussions with ambassadors or heads of state — would be off limits.

Jaap Cilliers (SC), also for the defence, said they were exercising a “basic fundamental right” in calling a witness.

“Almost every witness available in this regard has passed away. General Knobel is one of the few witnesses that is able to testify. Does he [Joubert] want to postpone the hearing until that witness passes away and at that point we might not have any witnesses left,” he said.

At which point the 75-year-old Knobel interjected: “Mr Chairman, I have no intention to pass away.”

The members of the professional conduct committee of the HPCSA conferred briefly behind closed doors before agreeing to hear Knobel’s testimony.

Committee chair Jannie Hugo said the committee needed clarity and asked for “openness” from the witness so that they could understand Basson’s situation properly.

“For the committee, on behalf of the profession, it is of crucial importance for us to understand such a complex situation, the issue of the doctor, the conflict and the military,” said Hugo.

Despite Joubert’s continued objections, the committee asked Knobel to proceed with his testimony.

To reassure the committee, Knobel offered to the evidence from his trial — comprising about 1 000 pages of testimony — to the state attorney for advice on whether any of it might be deemed secret.

The hearing continues on Friday.

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