Lawyers for chemical and biological warfare expert Wouter Basson argued in the Supreme Court of Appeal in Bloemfontein on Tuesday that a re-trial for their client would probably not be fair.
The lawyers were speaking during an appeal brought by the state against Pretoria High Court Judge Willie Hartzenberg’s refusal to recuse himself from Basson’s trial three years ago.
Hartzenberg acquitted Basson on 46 charges, ranging from murder and drug trafficking to fraud and theft, in April 2002.
”If this court should decide to order a re-trial, can he ever get a fair one?” advocate Jaap Celliers, for Basson, asked in the Appeal Court on Tuesday.
”There was already a trial of 32 months continuously. Some of the incidents happened as long as 24 years ago. My client was under continuous cross-examination for 34 days.
”Some of the witnesses have since died. There are court records of between 40 000 and 50 000 pages, which would probably have to be incorporated in a re-trial.
”A re-trial would possibly take even longer than the original one,” Celliers said.
He doubted whether his team would be able to mount effective cross-examinations in a re-trial, as ”many of the witnesses were already caught out lying”.
Indemnity granted by Hartzenberg to several state witnesses was a further issue to be kept in mind, Celliers said.
”Would their indemnity be rendered void if there should be a re- trial?”
After a question by presiding appeal, Judge Louis Harms, Celliers admitted there was a deficiency in South African law concerning presumed biased judges.
”Suppose an accused should bribe a judge. What legal recourse would the state have in such a case?” Harms asked.
In its bulky application for leave to appeal to the Appeal Court, the state accused Hartzenberg of ”bias” and ”judgement in advance”, saying his judgement indicated a ”total lack of interest in the state’s evidence”.
Basson was the head of apartheid South Africa’s germ warfare programme in the 1980s.
His trial was one of the longest and most expensive in South African history.
Harms reserved judgement on Tuesday. – Sapa