The state asked the Constitutional Court on Tuesday for a second chance at prosecuting apartheid-era chemical and biological warfare expert Dr Wouter Basson on six charges of conspiracy to murder.
The alleged victims were ”enemies” of the then South African government, in London, Mozambique, Namibia and Swaziland.
Wim Trengove, SC, argued for the state that the trial judge in the Pretoria High Court had erred in quashing the six charges, and asked for that ruling to be overturned.
”That would put us back in the [Pretoria High Court] on these charges as on the day they were quashed.”
He asked the court not to order the state to re-prosecute Basson, but to permit it to do so.
Trengove also asked for the wording of the court’s final judgement to make it clear that this would not be a fresh prosecution but a continuation of the original one. This would circumvent the law of prescription, which forbids the prosecution of a person for a crime (except murder) committed more than 20 years ago.
The crimes Basson is accused of were committed between 1979 and 1989. Judge Willie Hartzenberg quashed the six charges on the basis that they did not constitute a crime. The crime of murder, he found, was limited to the country’s borders.
Trengove said a re-prosecution could not happen without the trial court’s quashing of the charges being overturned, because of the principle of ”double jeopardy”. This protects a person from being prosecuted for the same crime twice.
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 Supreme Court of Appeal (SCA) in Bloemfontein dismissed in 2003 an application by the state for the reservation of certain legal questions arising from the acquittal.
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 the six charges related to alleged offences committed outside South Africa.
Trengove is arguing in an application for leave to appeal certain issues to the Constitutional Court.
In the morning, he was questioned from the bench on a number of his submissions in defence of procedural defects in the state’s application to the SCA. One of that court’s reasons for not entertaining the state’s appeal bid was the number of technical errors in its application.
Judge Albie Sachs told Trengove he believed the SCA might have erred in attaching too much weight to the procedural errors. He cited one of the charges against Basson specifically — the murder of about 200 members of the South West African People’s Organisation (Swapo) in detention camps in Namibia, and the disposal of their bodies by dropping them into the sea from an aeroplane.
Such a crime clearly did not require attention to be drawn to its gravity, Sachs said. ”It seems to me that a preoccupation with procedural matters… might have clouded the (SCA) judgement in a way that in a matter of this sort is not sustainable.
”The net result is that the public is left without a judicial determination in a matter of grave, historical importance.”
Trengove conceded that errors in the state’s submission to the SCA amounted to an ”unforgivable inconvenience”, but argued they did not create any injustice.
”The defects had to be weighed against all the other circumstances of the case, including the seriousness of the charges,” he argued.
The fact that the trial had taken so long — 31 months in total — made the state’s errors ”of less overwhelming importance, more understandable and more forgivable,” Trengove said.
But it was pointed out from the bench that with cases of such importance, one would assume that even closer attention would be paid to the technical details of such an application.
Trengove conceded this, but said: ”Once counsel have taken their medicine and the court has to consider the case, then it is an important factor to be taken into account that this is a case in which the interests involved are not limited to private interests, but that there are also very important public interests involved”.
One weighty factor the SCA should have considered was the constitutional and international law obligations on the state to prosecute cases of this kind, which involved serious alleged human rights violations.
”The defects should have been condoned for as long as they fall short of causing injustice to the accused,” Trengove submitted.
The six charges on which the state wish to re-prosecute Basson also included conspiracies to poison Swapo refugees in Namibia with cholera in their water, and the killings of various high-ranking members of liberation movements in London, Mozambique and Swaziland employing toxic substances and weapons allegedly supplied by Basson.
During the morning tea break, Basson was swamped by a group of school children touring the court for his signature. He smilingly obliged the youngsters from the Horizon High School, mostly black pupils. – Sapa