Catalogued among the myriad specious tales recounted in a Pretoria courtroom over the past 30 months is one in particular that veteran prosecutor Anton Ackermann cannot abide.
The stirring yarn has former military officer Wouter Basson bolting from one European hidey-hole to another over a three-month period in 1993. Travelling on foot or thumbing lifts from passing motorists, with American and British secret agents in hot pursuit, his desperate flight culminates in a secret meeting with his erstwhile South African Defence Force (SADF) boss ? and his first hot meal in weeks, courtesy of surgeon general Niel Knobel?s concerned wife.
Within a week Basson ? and the world ? will know if Judge Willie Hartzenberg shares Ackermann?s disbelief in what he likens to ?a story worthy of a World War II partisan?, or whether the testimony of almost 200 state witnesses and thousands of supporting documents will be rejected in favour of Basson?s sole explanation of events surrounding the remaining 46 criminal charges against him.
Hartzenberg?s judgement, to be delivered in the Pretoria High Court from April 11, will do one of two things:
- Vindicate a team of investigators who have spent almost 10 years uncovering an alleged R36-million fraud against a top-secret military project, as well as some of the most heinous murders perpetrated by agents of the apartheid government.
- Reinforce the perception ? created by such failed legal exercises as the 1990 Harms Commission of Inquiry into state-sponsored hit squads and the 1996 trial of former defence minister Magnus Malan and a phalanx of top-ranking military officers for the KwaMakhutha massacre ? that the top echelons of the former SADF appear somehow to be above the law.
Already burdened by the daunting logistics of presiding over Basson?s trial ? the transcript of proceedings runs to close on 30 000 pages; the court travelled to the United States for 10 days of hearings; key witnesses had to be brought to South Africa from Canada and Europe; the vast majority of evidence was presented by alleged accomplices and is thus subject to specific cautionary rules ?the judge has had to get to grips with one of the most sophisticated fraud scenarios ever placed before a South African court, and absorb the arcane intricacies of chemical and biological warfare.
For while the prosecution has emphasised from the start that one of the most costly criminal trials in South African legal history indicts neither the SADF nor its top-secret chemical and biological warfare programme, Project Coast, the charges of fraud, murder and drug trafficking against Basson arise from his alleged abuse of the project he led for 12 years.
The scope and complexity of the case, coupled with the passing of more than 15 years since many of the alleged crimes were committed, were enough to raise eyebrows when Judge Hartzenberg opted to act as sole adjudicator, eschewing the help of assessors who might, at least, have acted as a sounding board for his own impressions.
Even so, the prosecution has argued, the test of guilt amounts to nothing more taxing than ?the reasonable man?s? view. As Ackermann reminded the judge at one point, the British and American legal systems do not even require adjudicators of fact to be legal savants ? a jury might include a plumber, housewife, factory worker or truck driver, required only to listen to the evidence and weigh the probabilities before delivering a verdict, on the basis of which an offender could even be sentenced to death.
All Judge Hartzenberg had to do, Ackermann urged, was place himself in the shoes of any one of 12 imaginary members of a jury of Basson?s peers, and there would be ?neither doubt nor ambiguity? about his guilt.
Three days after voicing this opinion, Ackermann effectively retired from the arena, telling the judge it was blatantly obvious that despite the massive body of evidence before him, Judge Hartzenberg had not shifted one iota from the presumption of innocence that gave rise to an application for his recusal on the grounds of bias in February 2000.
In any other case, Ackermann?s dramatic delegation of summation and final argument to a junior advocate would have made news headlines. In the Basson case, it passed all but unnoticed, the almost inevitable final act in a running battle between the Bench and the prosecution for which the stage was set on the very first day of the trial ? October 4 1999.
Even before Basson entered a plea on the 67 charges he originally faced, the state suffered the first of a series of major setbacks. Defence advocates paid by the ?new? defence force challenged the right of the Pretoria court to try him for crimes allegedly committed in Namibia during the border war. The first of many bombshells was dropped by Jaap Cilliers in the form of revelations ? never before made public ? that on the eve of independence, the administrator general of then South West Africa had granted amnesty to all members of the South African security forces for any acts, legal or not, carried out during the Angolan and Namibian conflict.
Furthermore, the defence sought exclusion from the trial of the transcript of Basson?s October 1997 bail hearing, on the grounds that it contained extensive reference to his testimony during 39 days of interrogation by the Office for Serious Economic Offences (OSEO) during 1994. Like evidence presented to the Truth and Reconciliation Commission, OSEO testimony may not be used against a defendant in a court of law.
As a result of the Namibian amnesty, six of the most serious charges against Basson ? including the only murder charge that actually placed him at the scene of the crime ? were dropped immediately. On the morning of November 15 the judge grant-ed the application for exclusion of the bail hearing, accusing the state of ?ambushing? the accused and thus violating his right to a fair trial, then trying to ?slip the record in through the back door?.
It was a seminal moment in the case. Retired surgeon general Knobel was about to start testifying and, as the manager of Project Coast, he was the first witness who would have been able to furnish the court with details of the project, official front companies and specific financial transactions that could be measured against the version previously offered by Basson. Denied this opportunity to highlight possible discrepancies that would bolster its case, the state was at a decided disadvantage ? and there was worse to come.
A year later the court also ruled the transcript of a four-day debriefing of Basson by the National Intelligence Agency (NIA) inadmissible. The document was crucial to the state?s case, offering Basson?s answers to many of the questions at the heart of the most serious criminal charges against him, including allegations of murder and the chronology of his contact with Libya, the pillar on which his ultimate defence would rest heavily.
Senior NIA personnel involved in the 1994 exercise were not even permitted to use the 166-page transcript as an aide-mÃ