A constitutional duty rests on the state to prosecute alleged human rights abusers such as apartheid-era chemical and biological warfare expert Dr Wouter Basson, the Constitutional Court heard on Monday.
”There are a number of constitutional imperatives for the prosecution of people like Dr Basson,” argued Wim Trengove, SC, for the state in an application for leave to appeal against certain legal issues arising from Basson’s acquittal.
”If the allegations are true, it means that he was one of the most serious offenders of crimes committed under apartheid.”
Trengove argued in Johannesburg that the Truth and Reconciliation Commission, set up to uncover the details of apartheid-era crimes, required for its integrity and credibility that those who did not seek amnesty, like Basson, be prosecuted.
”The Constitution requires that this government should not walk away from these allegations until they have been properly adjudicated.”
Basson was initially charged with 67 criminal counts. After six charges were quashed and he 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 following month, the Supreme Court of Appeal in Bloemfontein dismissed an application by the state to appeal against certain aspects arising from the acquittal. Should the state succeed in its current appeal, it could opt to re-prosecute Basson.
The state is contesting the correctness of the acquittal on the basis of 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.
The six charges related to alleged conspiracies to murder opponents of the apartheid government in Namibia, London, Mozambique and Swaziland. Some of the charges related to the killing of about 200 members of the South West African People’s Organisation (Swapo) in Namibia and the disposal of their bodies by dropping them into the sea from an aeroplane.
They also involved the alleged poisoning of the water supply of a Swapo refugee camp with cholera bacteria in 1989.
The Pretoria High Court 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 triable under South African law.
Crimes against humanity
Trengove argued on Monday that the six charges amounted to crimes against humanity and war crimes. South Africa has a duty to prosecute such crimes under customary international law, international humanitarian law and in terms of several treaties to which the country subscribes.
Trengove spent much of the day answering questions from the bench as to why this contention, and other issues raised by him, were never part of the initial indictment against Basson. Several judges pointed out that it appears to be unfair for Trengove to be arguing grounds to which that Basson was never given an opportunity to plead.
He conceded that the indictment could have contained more information, but said this was not at the heart of the matter before the court currently.
He contended that the basis for all the charges were properly laid out in the charge sheet, even if it was silent about the legal grounds on which these were based.
Even though the state had failed to highlight the obligation to prosecute crimes under international law, the trial court and the Supreme Court of Appeal ought to have taken it into account, Trengove argued.
”It is the fate of judges to find the law,” he said.
In response to another question, Trengove said that while it is not a crime to kill people in times of war, the crimes Basson was accused of exceeded internationally recognised boundaries. These included the killing of civilians, and limited the methods deemed acceptable.
”This case doesn’t come close to the kind of killing permissible even in times of war,” Trengove argued.
He dismissed as irrelevant a general amnesty granted by the Namibian government, saying it did not apply to Basson and did not indemnify him from prosecution in South Africa.
Trengove argued that Hartzenberg had erred in quashing the six charges on several grounds, including having failed to take into account South Africa’s international obligations.
He said Namibia — then South West Africa — fell under South African administration at the time and was subject to South African law. Also, South African common law, which makes murder a crime, applied to Namibia at the time.
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 South African Defence Force — of whom Basson was one.
Asked from the Bench whether the state could not merely decide to prosecute Basson on properly re-formulated charges on the six counts, Trengove said the problem of double jeopardy is 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 overrule the high court ruling on this aspect — allowing the state to reinstitute prosecution.
Basson was present for Monday’s proceedings, sitting behind his legal team and making notes.
The hearing continues on Tuesday, and has been set down to conclude next Monday. — Sapa