State 'can't appeal quashing of Basson charges

The state has forfeited its right to appeal against the quashing of certain charges—of conspiring to murder people abroad—against apartheid chemical and biological warfare expert Dr Wouter Basson, the Constitutional Court heard on Wednesday.

Not only had it waited three-and-a-half years to raise this with the Supreme Court of Appeals (SCA), but its application was seriously flawed, Jaap Cilliers, SC, for Basson, argued.

The State is asking the Constitutional Court for special leave to appeal against a decision by the SCA, which effectively prevents it from instituting a new trial, following Basson’s acquittal on 46 charges—including murder, drug trafficking, fraud and theft—by the Pretoria High Court last year.

The State also wants leave to appeal to the Constitutional Court against Pretoria High Court Judge Willie Hartzenberg’s refusal to recuse himself from the trial, whom it claimed was biased.

In its bid, the prosecution also cites the judge’s decision not to allow the bail record in the trial proceedings and his ruling, at the request of the defence, to quash six charges under the Riotous Assemblies Act. Hartzenberg said the act did not apply to offences committed outside South Africa’s borders.

Cilliers said that after Hartzenberg made the ruling, State advocate Anton Ackermann indicated he would not “at this stage” take it on appeal. Ackermann had added that the minister might pursue an appeal in the SCA.

The fact that the State did not take the matter further at that time constituted a waiver of its right to appeal, he argued. Court rules dictated that an appeal should be lodged within a specific time.

Only after Hartzenberg’s final verdict in the matter did the State approach the SCA on a number of issues, including the quashed charges.

However, the application to the SCA was flawed in a number of ways and even when that court pointed out the shortcomings, they were not corrected, said Cilliers.

The State then applied to the SCA to condone its non-compliance with the court’s rules nevertheless and consider the application, but the court refused to do so.

“During the hearing at the SCA there was such a total shambles ... that the State admitted the non-compliance was of such a serious nature that maybe condonation should not be given.”

Ackermann then said that this application was in fact of an artificial nature, and that it was merely in support of the State’s main contention, that Hartzenberg was biased, Cilliers said. If the Constitutional Court did not fault the SCA on its decision not to condone the non-compliance, then it should not consider the matter of the quashed charges any further, he argued.

Judge Albie Sachs, however, wanted to know whether the Constitutional Court should not take into account that South Africa had to, in keeping with its obligations under international law, prosecute “grievous war crimes”—conspiring to commit mass murder across the country’s borders.

But Cilliers insisted that Hartzenberg was correct in his ruling to quash the charges.

“It would be a sad day for our legal system if we applied different principles if we have a person on trial who was a member of the old defence force or of the old police,” he added.

The hearing continues. - Sapa

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