November 4, 2003 Sapa.
BASSON MAY NEVER BE RETRIED
Apartheid-era chemical and biological warfare expert Dr Wouter Basson might not face a re-trial even if the State won the right to charge him anew, the Constitutional Court heard on Tuesday.
The State had not decided whether to prosecute him again, should it be allowed to do so, Wim Trengove, SC, told the court.
“This is not just another case; it is a very important case, because these are very, very serious charges,” he said.
This was one of the very few prosecutions that followed from the apartheid era in which a high-ranking military officer was accused of serious human rights violations, Trengove said.
“It is important for the victims and for society to know whether the acquittal was legitimate and lawful.” The State is asking the Constitutional Court for special leave to appeal against a decision by the Supreme Court of Appeals (SCA) effectively preventing it from instituting a new trial, following Basson’s acquittal on 46 charges -- including murder, drug trafficking, fraud and theft --by the Pretoria High Court last year.
The State also wants leave to appeal to the Constitutional Court against Pretoria High Court Judge Willie Hartzenberg’s refusal to recuse himself from the trial. Early in the trial the prosecution asked for his recusal on the basis of bias.
Basson’s legal team does not believe the State has the right to pursue the matter in the Constitutional Court. It rejects the contention that Hartzenberg was biased and maintains that a new trial will not be fair.
Chief Justice Arthur Chaskalson asked Trengove whether he wanted this or another court to study a 40,000 page court record and, on the basis of the judge’s perceived attitude, set the judgment aside -- a decision that might have no consequences.
According to Chaskalson, it would be inappropriate for the State to prosecute Basson again. It would not be fair to start it all over again while Basson’s acquittal was due to no fault of his own.
“Why would it be appropriate to put him on trial in these circumstances? If it isn’t, why should there be an appeal?” Trengove said the State may decide to prosecute Basson on a limited number of charges.
“If the State decides not to prosecute at all, the outcome of this case... still has very important public purposes. It would pronounce on the legitimacy or otherwise of the acquittal,” he said.
The State is pursuing an appeal of Basson’s acquittal on three grounds --- Hartzenberg’s refusal to recuse himself, his refusal to allow the record of the bail hearing to be used in the trial, and his decision to quash six charges under the Riotous Assemblies Act.
These charges relate to conspiracy to murder a number of people abroad, and the legislation did not cover offences outside the country, Hartzenberg ruled.
But Trengove contended the crimes fell within the ambit of customary international law, which South Africa was obliged to uphold. They were crimes against humanity, involved the crime of apartheid and constituted crimes under the Geneva Conventions.
“Those murders were systematically directed at members of a racial group as part of a design by the apartheid state to murder its political opponents using bacteriological and other means.” On a lighter note, Trengove and some of the judges speculated on whether it would constitute a crime to conspire in South Africa to drink whisky in Jeddah, or to conspire in the Netherlands to smoke dagga in South Africa.
But Judge Albie Sachs said there was a lot of trauma attached to the matter.
Plans were made to murder civilians and dispose of their bodies overseas. The international dimension was used to diminish the criminality, whereas it should really have aggravated it, he said.
“My sense is that the trial judge was mistaken,” Sachs said.
The SCA ruled that Hartzenberg’s refusal to recuse himself, and his decision not to allow the bail record into the trial, was based on facts, not a matter of law. Under the Criminal Procedure Act, the State may only appeal to the SCA on points of law.
But Trengove argued that bias should be in a special category.
The rule of law required an impartial judicial process.
“(This) makes the accused the judge in his own case.” Whether or not the admission of the bail record violated the accused’s right to a fair trial --- as Hartzenberg ruled it would --- was a also a constitutional matter which the highest court should decide upon, he said.
The hearing continues on Wednesday. - Sapa