The state’s claims that the trial judge who acquitted apartheid chemical and biological warfare expert Dr Wouter Basson was biased were examined in the Constitutional Court on Wednesday.
Alfred Cockrell argued on behalf of the state that any reasonable person would conclude trial Judge Willie Hartzenberg had been unconsciously biased against the prosecution.
But several judges asked him to clarify the state’s case against the background of the duty imposed on judges to presume an accused person innocent until proven guilty. Judges are obliged to ensure that a trial is not unfair to an accused person in any way.
Several incidents during the 31-month trial had had a ”cascading effect” of bias on the outcome, Cockrell claimed. He said there had been a ”consistent pattern” of incidents, statements, remarks and rulings that indicated the judge’s partiality.
This included his refusal to allow the state to call several witnesses.
Constitutional Court Judge Albie Sachs told Cockrell there would have to be something extraordinarily compelling to justify the overturning of an acquittal on the basis that a judge was biased in favour of an accused person. The law itself is by its very nature biased towards an accused person, as it guarantees one’s presumption of innocence.
”There has to be something very flagrant,” Sachs said.
Cockrell said the state is as entitled as the accused to a judge who keeps an open mind.
”Every litigant is entitled to that. The state should not be subjected to a higher hurdle in proving that a judge did not have an open-minded approach.”
Should the court find in the state’s favour, it would render Basson’s trial a nullity.
Bail hearing
Cockrell also argued that Hartzenberg’s refusal to admit the record of Basson’s bail hearing as evidence in his trial had materially hampered the state’s case. It amounted to ”depriving the state of artillery”.
He was arguing in an application for leave to appeal against the Supreme Court of Appeal’s refusal in 2003 to reserve certain questions arising from Basson’s acquittal.
Had the bail record been allowed, Cockrell said, the state would have been able to cross-examine Basson on evidence he had given during his bail hearing and highlight inconsistencies between that and evidence he gave at the trial.
”This may have had a material impact on the outcome of the trial,” he argued.
He pointed out several inconsistencies in Basson’s evidence relating to the fraud and theft charges against him. This included that Basson mentioned ”financial principals” — on whose behalf he set up a group of companies to launder money — the first time during his trial.
The principals were attached to the so-called ”CBO mafia” — a group of chemical and biological warfare ”mafia” from Russia, East Germany and Libya.
Basson testified during his trial that he had laundered the money on their behalf through the WPW group of offshore companies at the instruction of his South African Defence Force superiors — whom he referred to as his operational principals. He also claimed he was allowed to invest the funds supplied by the financial principals as he saw fit.
He never mentioned any ”financial principals” during the bail hearing, and Cockrell implied he might have invented them later.
‘Implausible’ version
If one compares Basson’s two versions, Cockrell argued, ”the discrepancies are so stark and the chasm is so huge that the accused would have had some serious questions to answer”.
The version Basson put forward at the trial was ”implausible”, and the state should have been able to test it against the bail record to expose it as a fabrication, he said. The trial judge wrongly accepted his version of events, despite it not having been verified by any witnesses.
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 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.
Basson’s legal team was expected to start arguing in the matter later on Wednesday. — Sapa