Constitutional Court judges grilled the state on Monday for raising issues in an application for leave to appeal against certain legal issues arising from the acquittal of apartheid chemical and biological warfare expert Dr Wouter Basson, that were not detailed in the initial indictment against him.
Several judges questioned Wim Trengove, SC, about the fairness of arguments he put forward in challenging the trial court’s quashing of six charges against Basson that related to conspiracies to murder ”enemies” of the then South African government in Namibia, Mozambique, Swaziland and London.
The Pretoria High Court has found that the six charges under the Riotous Assemblies Act did not constitute a crime because the murders were not committed in South Africa. The Act outlaws conspiracies to commit any crime that can be tried under South African law.
Trengove argued that the Pretoria High Court had erred on four grounds. Namibia, then South West Africa, was under South African administration at the time, and subject to South African law. Also, South African common law, which makes murder a crime, applied to Namibia at the time.
In the third instance, the crimes of which Basson stood accused constituted contraventions of the Defence Act, which gave extra-territorial application to South African laws to all members of the SA Defence Force — of whom Basson was one.
Trengove also argued that the six charges constituted a crime under international customary international law — which the South African State had a duty to prosecute.
This included international laws against war crimes, the crime of apartheid, and crimes against humanity, he said. None of these four issues were argued before the trial court, or in a failed application for leave to appeal against the acquittal to the Supreme Court of Appeal in Bloemfontein.
Several of the judges asked whether fairness did not dictate that the provisions being relied upon should have appeared in the indictment itself.
The state has a duty to put into the indictment the full details of a charge of which a person has been accused.
”If one seeks to rely on any of these grounds to implicate a person the question must arise whether an accused person must meet each of these grounds at the point of pleading,” said Judge Dikgang Moseneke.
Judge Kate O’Regan asked whether a fair trial did not require of the state to make out its case during the trial process.
Trengove conceded that the charge sheet could have contained more information, but said this was not at the heart of the issue before the court currently. ”This is not a proper pleading debate, but a procedural debate,” he told the judges.
He added that the basis of all the charges were properly laid out in the indictment, even if it was silent on the legal grounds on which these were based.
Had the accused asked for the state’s reasoning, it would have been provided.
His current arguments did not seek to add anything to the allegations against Basson.
”The charge sheet is not misleading in that regard, merely silent,” Trengove argued.
”This is merely a conclusion of law based on the same facts.”
The Constitutional Court is hearing an application by the state for leave to appeal against certain findings of the Supreme Court of Appeal (SCA) in Bloemfontein.
In May 2002, the SCA dismissed the state’s application for leave to appeal against Basson’s acquittal.
Basson was initially charged with 67 criminal counts. After six charges were quashed and he got a discharge on several others, Basson was acquitted in the Pretoria High Court in April 2002 on 46 charges — including murder, drug trafficking, fraud and theft.
The state is contesting the correctness of the acquittal on the basis of 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.
Should the state succeed in its appeal, it could opt to reprosecute Basson.
Asked from the bench on Monday whether the state could not merely decide to prosecute Basson on properly re-formulated charges on the six counts involving extra-territorial murders, Trengove said the problem of ”double jeopardy” was likely to arise.
It prevents a person from being prosecuted more than once on the same charge.
”The fact of the matter is that the [Pretoria High Court] judgement will probably operate against the state if it were to advance the same case but attach different labels to it,” he said.
The effect of the High Court’s ruling was that the six charges did not constitute crimes — precluding the state from raising the same complaints.
He therefore asked the Constitutional Court to discard the High Court ruling that the charges did not constitute crimes. – Sapa