The Constitutional Court reserved judgment on Wednesday on an attempt by the Institute for Security Studies (ISS) to join an appeal bid by the State against the acquittal of apartheid-era chemical and biological warfare expert Dr Wouter Basson.
The institute seeks permission to join the proceedings as an amicus curiae (friend of the court) to allow it to present arguments on the legal implications arising from the failure to hold Basson accountable under international law.
In March, the court agreed to consider certain issues arising from an application by the State for leave to appeal against Basson’s acquittal.
It found that constitutional implications arose from trial judge Willie Hartzenberg’s refusal to recuse himself on the grounds of bias, his decision not to admit the bail record in the trial and his quashing of six charges related to alleged offences committed beyond South Africa’s borders.
An application by the State for special leave to appeal is to be heard by the 11 Constitutional Court judges in February. Six days have been set aside for the hearing, from February 21 to 25 and again on the 28th.
The State is appealing against a Supreme Court of Appeal refusal to entertain its petition for the court to consider a question of law concerning the trial court’s quashing of certain charges. In its heads of argument, the ISS said on Wednesday it wished to make submissions regarding South Africa’s international law obligations concerning crimes against humanity and war crimes.
The ISS argued that it intended advancing submissions not yet canvassed, and which would be of assistance to the court. ” … it is in the interests of justice that these submissions which address the important question of South Africa’s international and constitutional obligations to effectively prosecute conduct which amounts to international … crimes, are placed before the court,” the heads of argument read.
”The ISS believes it can assist the court in determining South Africa’s international obligations concerning war crimes and crimes against humanity, their relevance to the charges quashed and whether or not the trial court and the Supreme Court of Appeal erred in their findings.”
The ISS conducts research and engages in advocacy on matters concerning the human security debate in Africa.
The State has consented to the ISS being admitted as an amicus, while Basson’s legal team has said it was not in principle opposed to the move, but viewed the ISS’s intervention as irrelevant to the proceedings.
Among other things, the institute wished to make submissions on the legal and political consequences of a failure by South Africa to prosecute and punish international crimes.
In its March judgment, the Constitutional Court said the principle of double jeopardy — in terms of which a person could not be prosecuted for the same crime twice — might not apply to Basson should it be found that the trial judge had, indeed, been biased.
”It may well be that the accused will be held not to have been in jeopardy of conviction on the indictment,” it said at the time.
The double jeopardy principle would not apply to the six charges quashed by Hartzenberg, as Basson had never pleaded to those.
Some of these related to a conspiracy to murder about 200 members of the South West African People’s Organisation (Swapo) in Namibia and dispose of their bodies by dropping them into the sea from an aircraft. They also involved the poisoning of the water supply of a Swapo refugee camp water with cholera bacteria in 1989.
If it succeeds in its appeal, the State mayd opt to re-open the prosecution against Basson.
Basson was initially charged with 67 criminal counts. After six charges were quashed and Basson later got a discharge on several others, he was acquitted in the Pretoria High Court in April 2002 on 46 charges — including murder, drug trafficking, fraud and theft.
The State applied for Hartzenberg’s recusal four months into the trial, saying he had prejudged the case. He dismissed the application.
In May 2002, the appeal court dismissed the State’s application for leave to appeal. It held that the issues related to Hartzenberg’s recusal and the bail record were questions of fact, not law, and could therefore not be reconsidered.
The Constitutional Court found in March that the appeal court had erred in that regard.
The question of whether a judicial officer should recuse himself was a constitutional matter as impartial adjudication was the cornerstone of a fair and just legal system, it said at the time. – Sapa