The Pretoria High Court had erred in quashing charges against apartheid chemical and biological warfare expert Dr Wouter Basson of conspiring to murder ”enemies” of the then government beyond South Africa’s borders, the Constitutional Court heard in Johannesburg on Monday.
Trial judge Willie Hartzenberg was mistaken in finding that the charges failed to make out a punishable offence under South African law, Wim Trengove, SC, argued for the state.
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 initially faced 67 criminal charges. 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.
These six charges, Trengove argued on Monday morning, did indeed constitute an offence under the Riotous Assemblies Act — that of conspiracy to commit mass murder in Namibia, Swaziland, Mozambique and London.
Hartzenberg had been wrong to find that the charges did not prove a crime under South African law because the crime of murder was limited to the country’s borders.
”There are certain parts of our law that run beyond the border in exceptional cases,” Trengove argued.
Among other things, he contended that Namibia was at the time a mandate territory administered as part of South Africa, saying South African laws would also have applied to the territory as it was then known — South West Africa.
”The South African Parliament enjoyed supremacy in South West Africa, it legislated for South West Africa, and in this case it expressly did so,” he told the court.
The Riotous Assemblies Act, Trengove added, which outlawed conspiracy to commit any offence punishable under South African law, therefore sought to punish such crimes committed both in South Africa and in South West Africa. – Sapa