precedent
Stefaans Brmmer
The Pretoria High Court decision this week to scrap six charges against apartheid’s “Dr Death”, Wouter Basson, may set a legal precedent allowing similar killers to walk free.
The court ruled Basson cannot be prosecuted for poison murders committed abroad.
One of the first judicial casualties may be efforts by the National Directorate of Public Prosecutions to bring to book the killers of Namibian advocate Anton Lubowski, a leading South West African People’s Organisation (Swapo) activist. Members of the Civil Co-operation Bureau (CCB), an apartheid hit squad, have been blamed for his 1989 assassination in Windhoek.
Ordinarily, South African courts have no jurisdiction to judge crimes committed abroad, even when the culprit is South African. In the case against Basson, manager of the former government’s chemical and biological warfare programme, the state attempted to by-pass this principle by charging him with “conspiracy” to murder.
In each charge dismissed by Judge Willie Hartzenberg on Tuesday, the state argued that while the actual crime took place abroad, the planning was done locally – and that was punishable.
But it was only a week into the trial – before Basson pleaded to the 67 original charges of murder, conspiracy to murder, fraud and drug offences – that Judge Hartzenberg acceded to a defence motion to scrap the charges. After heated legal argument, he ruled that conspiracy to commit a crime is not a crime if the deed was done outside the country’s borders.
Since South African courts have to respect legal precedent, it may well mean Lubowski’s assassins cannot be tried. Torie Pretorius, deputy director of public prosecutions in Pretoria and one of the Basson prosecutors, reopened the Lubowski investigation late last year, and conspiracy to murder was thought the likely charge.
On Tuesday, Anton Ackermann, co- prosecutor in the Basson trial, told Judge Hartzenberg that the state may appeal his ruling when the trial resumes on October 25. But if the judge’s ruling stands, the public will be denied the opportunity to hear details of some of Basson’s and the apartheid state’s darkest secrets.
Among the 61 charges that remain, some are similar. In one instance, Basson allegedly supplied a poison jelly to be rubbed on three unknown victims in KwaZulu-Natal. When the jelly failed, the victims were injected with muscle relaxants, which killed them.
The underpants-poisoning of anti- apartheid activist Frank Chikane, who fell seriously ill but survived, also stands. Chikane is now director general in President Thabo Mbeki’s office.
But the effect of Judge Hartzenberg’s ruling will be that testimony recounting the details of the dropped charges cannot be heard in court.
The indictment claims, for example, that the poisoning of the 200 Swapo detainees was decided at special forces headquarters in Pretoria, due to an “overpopulation” of the detention facilities. Details of who opted for mass murder on such cynical grounds may well now be denied the public.
The indictment, for the first time, gives a coherent account of the interaction between Basson and his colleagues, on the one hand, and the apartheid state’s assassination machinery on the other.
It sketches how Basson’s programme manufactured gadgets and toxins, including sugar coated pills as diverse as “coffee chocolate containing B anthracis”, “salmonella typhimurium in deodorant” and “whiskey 50ml with colchicine”.
Such poisons were allegedly regularly handed over to units of the defence force – often the CCB – and also to police members. In the case of the CCB, the alleged middleman was often one RF Botha, “medical co-ordinator” of the CCB and a relative of former Cabinet minister Pik Botha.
David Unterhalter, law professor and director of the Centre for Applied Legal Studies, said conspiracy charges have always been “a tricky area” in South African law, and that Judge Hartzenberg’s ruling “may well be the first definite judgment”.
But he added: “Should an appeal court ultimately uphold this view, it cries out for statutory adjustment . From a moral perspective there is a great deal to be said for the proposal that one should make conspiracies, if they are seriously entered into . subject to punishment.”
Conspiracy charges, where the actual crime was committed abroad, have not often been brought in South Africa. Earlier this year such a prosecution against former mercenary Schalk Krugel failed not because of legal objections against the charge, but for lack of evidence. Krugel was accused of murdering two South Africans and a Namibian in war-torn Angola.
The same conspiracy law was successfully used against Vlakplaas hit squad commander Eugene de Kock during his 1995/96 trial. He was convicted on charges of conspiring to murder askari Brian Nqulunga and Japie Maponya, brother of an African National Congress soldier, outside South Africa. Nqulunga was killed in the former Bophutatswana, and Maponya was taken across the border into Swaziland to be killed.
Judge Hartzenberg on Tuesday agreed with Basson’s defence argument that the principle of the law had not been argued in the De Kock case, and that he was consequently not tied to that precedent.