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Erika De Beer
06 Nov 2003 09:09
The State wants the Constitutional Court “to bend the rules” in order to secure a conviction of Dr Wouter Basson, his counsel said on Wednesday.
The Pretoria High Court had found Basson, a chemical and biological warfare expert of the apartheid government, not guilty on all charges against him, Jaap Cilliers, SC, said.
The Supreme Court of Appeal (SCA) refused to allow the State to pursue an appeal in this regard.
What the State’s request to the Constitutional Court boiled down to was, according to Cilliers: “You must help us just to find a way against this accused.”
He told the court: “You’ll have to bend the rules to give leave in this matter.”
The Constitutional Court reserved judgement on Wednesday on the application by the State for special leave to appeal against a decision by the SCA effectively preventing 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 on the basis of bias.
In its bid, the prosecution also cites the judge’s decision not to allow the bail record in the trial proceedings and his ruling to squash six charges under the Riotous Assemblies Act—relating to conspiracy to murder people abroad. Hartzenberg said the Act did not apply to offences committed outside South Africa’s borders.
Cilliers argued that even though these charges were struck off, at the request of the defence, Hartzenberg would not squash an umbrella charge, encompassing the allegations contained in those charges and others relating to offences that occurred in South Africa.
The evidence that would have been led for the quashed charges was led in support of the umbrella charge.
To allow the State to re-institute the quashed charges would therefore mean Basson was charged on allegations on which he had already been acquitted, he said.
Wim Trengove, SC, for the State, however, said Hartzenberg only allowed the umbrella charge to stand in as far as it excluded the allegations in the quashed charges.
Cilliers pointed out that the people who admitted in court that they had committed the murders, did not get indemnity from prosecution.
He contended that the State forfeited its right to appeal against the quashing of the six charges. Not only had it waited three-and-a-half years to raise this with the SCA, but its application to that court was seriously flawed, according to Cilliers.
The State applied to the SCA to condone its non-compliance with the court rules, but this was turned down.
Trengove asked whether the defects were important. He also argued that the State had not said it would never appeal the matter, only not at the time the ruling was made.
Judge Albie Sachs asked Cilliers whether the Constitutional Court should not take into account that South Africa had an obligation under international law to prosecute “grievous war crimes” like conspiring to commit mass murder across the country’s borders.
Cilliers replied: “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 the old police.”
Later he said: “I don’t see the difference between a murder committed out of greed and a murder committed with a political motive.”
On the issue of Hartzenberg’s perceived bias, he said Basson had no hand in appointing the judge for his trial.
“Why should he forfeit his rights because the State, in a broader sense, appointed a judge with which it was in the end not satisfied?”
Chief Justice Arthur Chaskalson pointed out that it seemed there was no remedy for the State should it believe a judge was biased. The State had the right to enact legislation, and it did not provide for an instance like this, Cilliers said. - Sapa
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