The state was given the go-ahead on Friday to reopen its prosecution of apartheid-era germ-warfare expert Dr Wouter Basson on six charges of conspiring to commit offences abroad.
But the principle of double jeopardy — shielding a person from being tried on the same charge twice — might yet preclude a retrial.
The Constitutional Court overruled trial Judge Willie Hartzenberg’s quashing of the six charges in 1999. He had found the charges not to be triable in South Africa as the conspired offences were committed beyond the country’s borders.
The highest court, however, found a ”real and substantial connection” between South Africa and the crimes allegedly committed elsewhere.
It also criticised the Supreme Court of Appeal (SCA), in turning down the state’s challenge, for failing to consider South Africa’s obligation to uphold international humanitarian law.
The ruling means it is open to the state to proceed with the six charges against Basson, Chief Justice Pius Langa said in handing down the unanimous judgement.
The court made no determination on challenges posed by the principle of double jeopardy.
That would have to be decided by the trial court should the state opt to re-charge Basson.
Basson told Radio 702 he is relieved and confident he will not be retried. He said from Europe he believes his 10-year legal battle is at an end.
The Constitutional Court said an individual is only protected against a second prosecution if he was in jeopardy of conviction the first time.
Basson never pleaded to the six charges, but the trial court nevertheless heard argument on them.
”The question of the right of Dr Basson to be tried within a reasonable time and the question of double jeopardy will have to be determined by the trial court,” the judgement said.
NPA pleased with judgement
The National Prosecuting Authority (NPA) expressed delight at the judgement, but will need to study it in full before deciding whether or not to reprosecute Basson.
”The judgement will be vital in future prosecutions relating to crimes committed outside the borders of the republic while planned in this country,” it said in a statement.
”[It] also sends a clear message that South Africa will not be used as a base for planning crimes that are committed overseas.”
In February, prosecutors said a retrial could be launched within three months of the green light being given.
The six charges relate to conspiracies to commit serious crimes, mainly murder, in Namibia, Mozambique, Swaziland and the United Kingdom between 1979 and 1989.
Victims included South West African People’s Organisation members, former South African Defence Force members constituting a ”security risk”, so-called enemies of the state, African National Congress members and individuals such as Ronnie Kasrils and Pallo Jordan.
Among other things, the state alleges that Basson conspired to poison ”enemies” and dispose of their corpses from aircraft over the sea.
He also stands accused of manufacturing and providing cholera bacteria with which to infect water supplies.
The SCA had failed to consider the gravity of the allegations or South Africa’s obligations under international law, Langa said.
”There can be no doubt that the use of instruments of state to murder captives long after resistance had ceased would in the 1980s, as before and after, have grossly transgressed even the most minimal standards of international humanitarian law.”
Basson, a cardiologist, headed the apartheid government’s chemical and biological warfare programme, Project Coast.
He was charged with 67 criminal counts. After the six conspiracy 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 and fraud and theft involving about R37-million.
In 2003, the SCA dismissed a state bid to reserve for readjudication certain questions of law arising from the acquittal.
The state contested the acquittal on the basis of Hartzenberg’s alleged bias, his refusal to allow the bail record as evidence, and the quashing of the six charges.
The Constitutional Court dismissed the state’s appeal on all but the six charges.
None of the complaints raised against Hartzenberg gave rise to a reasonable apprehension of bias, Langa said.
”While some of [his] remarks were inappropriate and at least some of the legal rulings or factual findings might have been mistaken or questionable, these had to be understood in the context of a marathon trial where human error and frustration are understandable.”
The prosecution also failed to prove that Hartzenberg misused his discretion in disallowing the bail record.
The NPA expressed disappointment with the court’s rulings on these two points. — Sapa