Basson: Apartheid crimes may feature

The right of the public to information on covert crimes in the apartheid years might justify a proper adjudication of quashed charges against Wouter Basson, a Constitutional Court judge said on Thursday.

The South African and Namibian public, especially relatives of people who disappeared, have the right to obtain clarity, Judge Albie Sachs stated in questioning Basson’s legal counsel, Jaap Celliers.

“The public is left in the dark in relation to very grave matters in our history,” he said.

The trial court had quashed six charges against Basson—the head of the apartheid government’s chemical and biological warfare programme—of conspiring to murder “enemies” of the then government beyond South African borders.

One of the charges related to the alleged murder of about 200 members of the South West African People’s Organisation (Swapo) in Namibian detention camps and the disposal of their bodies by dropping them into the sea from a plane.

Basson was also charged with conspiring to poison Swapo refugees in Namibia with cholera in their water, and conspiring to murder various high-ranking members of liberation movements in London, Mozambique and Swaziland employing toxic substances and weapons.

Trial Judge Willie Hartzenberg found that the charge sheet failed to disclose any offence on the six counts since the crime of murder was only “triable” if committed within South African borders.

Ruling once and for all

Sachs asked Celliers on Thursday whether it would not be to everybody’s advantage to get a ruling on the charges once and for all.

He pointed to uncertainties the case could potentially cast on the current defence force’s activities in the rest of the continent—including South Africa’s obligations and liabilities under African and international conventions.

But Celliers said there is nothing for Basson to answer to.

“We are absolutely certain that there is no case against our client,” he told the court.

Celliers was arguing against an application by the state for leave to appeal against certain issues arising from Basson’s acquittal on a variety of charges in 2002.

He argued that the state never managed to prove that Basson stole a single cent of the money he was given to set up the apartheid government’s chemical and biological warfare programme, Project Coast.

In fact, the state’s own witnesses at the trial testified that the money was duly spent on acquiring equipment and substances for the project. South Africa’s chemical and biological capability, set up under Basson, was one of the most advanced in the world at the time, he added.

“With what would that have been created, because according to the state, he stole every cent of it? On their version, it must all have fallen from the sky.”

Judge not biased, says defence

Celliers disputed contentions on behalf of the state that Hartzenberg had been biased, and that his quashing of the bail record as evidence in the trial had critically hampered the prosecution.

He said the judge had also made decisions detrimental to the defence.

The state claimed it would have been able to use evidence Basson gave during his bail hearing to show during his trial that he was a liar. It claimed he gave different versions of events at the bail hearing and the trial relating to the financial charges against him—totalling about R37-million.

Among other things, the state believed it would have been able to prove that Basson made up the existence of certain financial principals at whose behest he created a group of companies to launder money on their behalf. The state claimed that Basson had channelled government money into those companies for his own benefit.

Celliers argued that the existence or otherwise of such financial principals was not material to the outcome of the trial. Even with the evidence from the bail record, he claimed, the state would not have been able to prove any of the fraud charges against Basson.

The state was never able to prove that Basson spent any of the money provided for Project Coast by the then government on anything else. In fact, it was testified that a full investigation in 1992 involving the inspector general, the auditor general and an external auditor determined that the money was well spent.

The government then put everything related to Project Coast, including most of the official documentation, on to two planes and dumped it into the sea. It would have been very difficult because of this destruction of equipment and documentation to prove any wrongdoing against his client, Celliers said.

He said the state’s own witnesses testified that Basson never received one cent of personal advantage from any of the front companies.

Trained in deception

Celliers said the evidence obtained from Basson during the bail hearing had been extracted unfairly, and was correctly dismissed by Hartzenberg. But Sachs pointed out that the bail record might have been the only way for the state to show the trial court that Basson was lying.

Sachs said it is widely known that Basson was well-trained in the science of deception. Yet, because of Hartzenberg’s ruling, the court now has only his version of events.

Celliers argued that it would not be fair to subject Basson to reprosecution after a trial and appeal process lasting close to seven years.

The principle of double jeopardy—which protects an accused person from being tried for the same crime twice—applies in this case, he said.

Regarding the rules of prescription, in terms of which a person cannot stand trial for a crime committed more than 20 years ago, Celliers argued it is not the Constitutional Court’s duty to help the state out in that regard by making a special ruling. The state had ample time after the quashing of the six charges to redraft the charge sheet and institute a trial afresh.

He also argued that the state is not at liberty to raise issues now that were not mentioned in the initial indictment—such as claiming that the six charges constituted war crimes and violated several international conventions.

Cost of ‘millions and millions’

As to the larger public interest in the case, Celliers said the court should take into account that the trial and appeal process so far must have cost the taxpayer “millions and millions” of rands.

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.

In 2003, the Supreme Court of Appeal in Bloemfontein dismissed an application by the state to reserve certain legal issues 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 six charges related to alleged offences committed beyond South Africa’s borders.

Celliers expects to conclude his submissions on Friday, whereafter the state will be given an opportunity to reply.—Sapa