After a trial and appeal process lasting close to seven years, it would surely not be fair to allow Dr Wouter Basson to be tried afresh, the Constitutional Court heard in Johannesburg on Thursday.
”To allow the opportunity for the accused to be put through seven years again must really weigh very heavily against whatever prejudice the state might have suffered,” Jaap Celliers, SC, contended on behalf of Basson — head of the apartheid government’s chemical and biological warfare programme.
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 disputed an argument on behalf of the state that Basson’s prosecution was critically hampered by trial Judge Willie Hartzenberg’s decision not to allow the bail record as evidence in the trial.
The state claimed it would have been able to use the evidence Basson gave during his bail hearing to show during the trial that he was a liar.
Dismissing arguments that the state had been the victim of bias by the trial judge, Celliers argued that Basson himself had been treated unfairly by the state.
He claimed the state had asked Basson’s employer, the South African National Defence Force, to terminate his legal representation. He was arrested only after this had been done. Basson’s legal representation was later reinstated.
Celliers said the evidence obtained from Basson during the bail hearing had been extracted unfairly, and was correctly dismissed by Hartzenberg.
But Constitutional Court Judge Albie Sachs pointed out that the bail record might have been the only way for the state to show the trial court that Basson — a self-confessed master of deception — was lying.
Sachs said it was 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 told the court that his client went through a trial of nearly three years and has now been facing an appeal process for almost four more.
”The accused has been in this situation in which he finds himself for seven years now.”
He also argued that the principal of double jeopardy — which protects an accused person from being tried for the same crime twice — applied in this case.
As to the larger public interest in the case, Celliers said 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, he 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 has indicated that he wishes to finish his submissions by the end of the day. — Sapa