A subpoena issued for former president FW de Klerk to testify for the defence in the Boeremag treason trial was set aside by the Pretoria High Court on Tuesday.
”The subpoena issued against (De Klerk) is an abuse of the court process and therefore bad in law,” Transvaal Judge President Bernard Ngoepe ruled.
He said the trialists expected De Klerk to testify on aspects of the law, on which he was no expert.
Thirteen of the Boeremag accused subpoenaed the former president to give testimony in support of their contention that the current Constitution, the government and its institutions were illegitimate.
They contend the court has no jurisdiction over them. Ngoepe said their challenge was based on the assertion that they belonged to a section of the population which did not approve of constitutional developments since 1989 — which led to the adoption of the present Constitution.
”The real issue to be decided by the trial court is, therefore, whether it is possible for a section of the population in a unitary state not to be bound by the Constitution of the country,” the judge said.
”This is a legal question on which (De Klerk’s) evidence would be irrelevant and inadmissible; the trial court is an expert on the law itself.”
Ngoepe upheld De Klerk’s application with costs, payable by the 13 trialists. They were named as the main respondents, represented by attorney Paul Kruger.
The men wanted the former president to give evidence in support of their argument that the National Party, under his leadership, suspended the authority or power to pass constitutional legislation.
They contend De Klerk went back on an undertaking not to pass such laws before consulting the electorate. The judge criticised Kruger for failing to make a distinction in his argument between the executive or the National Party on the one
hand — both headed by De Klerk at the time — and Parliament on the other.
”This was a crucial confusion, which led to a submission that the applicant or his government or his party could competently curtail the law-making capacity of Parliament,” Ngoepe said.
”No wonder the applicant (De Klerk) contends that the motive… behind the subpoena is to use the trial court as a forum to hold him politically accountable for the political developments of that period.”
De Klerk would in any event not be able to give admissible evidence on the constitutionality of processes through which laws were made, the judge said.
Similarly, his evidence on the trialists’ contention that laws were adopted in conflict with the 1983 Constitution would be irrelevant and inadmissible.
The men contend the Electoral Act and Transitional Executive Council Act were adopted while the previous Constitution was still in place. These laws in turn lay the foundation for the current legislative, executive and judicial authority.
The judge said De Klerk could also not be expected to testify on the legitimacy of the 1994 democratic elections.
De Klerk said in court papers that even though there may have been irregularities in the poll, these would not have affected the balance of power.
For their part, the 13 contended the election was wrongly declared ”free and fair”, therefore laying an irregular basis for the creation of the Constituent Assembly — which adopted the new Constitution.
Ngoepe said the Independent Electoral Commission’s certification of the election results were binding — as was the Constitutional Court’s adoption of the Constitution.
”What would be the relevance of the applicant’s evidence about irregularities which occurred nine years ago?” the judge asked.
Twenty-two alleged members of the right-wing Boeremag organisation are standing trial on 42 charges, including high treason, terrorism, sabotage, murder, and several firearms and explosives violations.
The State alleges they plotted to overthrow the government. Their trial resumes on Monday. – Sapa