Marlene Burger
The marathon trial of Dr Wouter Basson degenerated into a clash of legal wills this week after the extraordinary demand by the state prosecutor that the presiding Judge, Willie Hartzenberg, step down.
After searching in vain for legal precedent, lawyers on both sides concluded that this was probably the first time in South African legal history that the prosecution in a criminal trial had sought the recusal of a judge.
At stake was nothing less than the projected two-year trial of Basson, the apartheid government’s germ warfare boffin, who has pleaded not guilty to 61 criminal charges ranging from drug trafficking to murder.
In one corner was feisty senior state advocate Anton Ackerman, the man who successfully led the prosecution against police hit squad leader Eugene de Kock and put seedy Civil Co-operation Bureau agent Ferdi Barnard behind bars.
In the other, surprisingly, was the presiding judge, a man whose role is customarily that of umpire rather than contender.
Thrust into the limelight a fortnight ago, when he told the court it would take “very little” to convince him that a multinational business empire set up and secretly controlled by Basson was not, as the state alleges, used to defraud taxpayers of R36- million, Judge Hartzenberg shrugged off one body blow after another as Ackerman reeled off a litany of comments, rulings and incidents during the first three months of the trial which, he said, showed not only that the judge was biased in favour of the accused, but had prejudged the massive body of evidence amassed by the state over the past seven years.
At times, Ackerman confessed, he had felt like Judge Hartzenberg’s “punchbag”. At others, his perception of prejudice had been reinforced by slights from the Bench about ostensibly trivial matters such as his illegible signature, and sarcastic barbs directed exclusively at the prosecution.
But, despite the fact that Judge Hartzenberg dismissed the recusal application as frivolous, absurd, mind- boggling and unfounded “in totality”, this was not a step taken lightly by the state.
Ackerman entered the arena with the full support of National Director of Prosecutions Bulelani Ngcuka, and his deputy, Jan d’Oliveira, who initiated the prosecution of Basson while still Transvaal attorney general three years ago.
Applications for judges to step down on grounds of bias are not uncommon in South African courts, but they are traditionally brought by the accused, and this is believed to be the first time a prosecutor has sought recusal in a criminal case.
Seen in isolation, Ackerman acknowledged, the incidents cited did not give undue cause for concern, but the cumulative effect had led the state to believe that it had “absolutely no chance” of gaining convictions in Judge Hartzenberg’s court on any of the 27 fraud charges.
Ironically, the 60-year-old judge – younger brother of Conservative Party leader Dr Ferdi Hartzenberg – has built an impressive reputation in his 20 years on the bench as an astute arbiter in commercial cases.
Mind-numbing in its complexity, Basson’s alleged fraud requires a seemingly endless ream of supporting documents – many in his own handwriting – to explain. On one occasion, this prompted the judge to tell Ackerman he was “bored to death” by repeated and detailed reference to correspondence, bank records and statements during testimony by forensic auditor Hennie Bruwer. There was “no need to prove your case three times”, Judge Hartzenberg said, urging the prosecutor to confine himself to the auditor’s summarised report “unless there is something earth-shattering you want to tell me”.
Ten days later, the judge halted Ackerman in his tracks as he read out a letter dealing with a 1988 proposal for privatisation of Delta G Scientific, the Midrand chemical plant set up by the then South African Defence Force as part of the top-secret Project Coast, asking irascibly: “Where are we going with this? This is a proposal that came to nothing. What on earth is wrong with this? Who were they trying to deceive? Where is the fraud here?”
These and similar comments had given rise to mounting frustration and a growing perception that the state was “wasting its time … and might as well pack its bags”, Ackerman told Judge Hartzenberg.
In addition, the judge appeared to “slavishly” accept every suggestion made by defence counsel Jaap Cilliers to expedite proceedings, and at times even seemed to be offering “cues” on which a defence for Basson could be built.
Indeed, the state perception was that Judge Hartzenberg “constantly” sought and highlighted aspects of the case which could be used to illustrate the innocence of the accused.
At one point during legal argument, Judge Hartzenberg told Ackerman he had not realised “how many times you have been unhappy”.
“Perhaps you should have looked at me more often, Your Honour,” Ackerman replied laconically.
That Judge Hartzenberg was not taking the challenge to his honour lightly was evident throughout the legal argument, as he traded blow for verbal blow with the man who wanted him to step down, asking at one juncture: “At the end of the day, must this case be tried on the way the advocates act, or on the facts? How have I prejudiced you – except for bruising your ego?”
With more than 150 witnesses yet to testify against Basson, the end is still a long way off, but as he left court on Wednesday afternoon, Ackerman had elicited from the judge the categoric assurance that in accordance with his oath of office, he would weigh every shred of evidence in order to ensure that justice prevails.
And there, at least for now and on the question of bias, the prosecution must rest.