The State v. Wouter Basson

Court	Constitutional Court of South Africa, South Africa
Case number	CCT 30/03
Decision title	Judgment (preliminary ruling)
Decision date	10 March 2004
Parties	The State (Republic of South Africa) Wouter Basson
Categories	Human rights violations
Keywords	murder, attempted murder, chemical weapons, conspiracy to murder, fraud and manufacturing, possessing and dealing in drugs
Links	Judgment (preliminary ruling)

Summary

Post-apartheid South Africa continues to be faced with the difficult question on how to deal with past human rights violations. From 1999 until 2005, the South Africa Prosecution Authority attempted to have Wouter Basson convicted. Basson was head of the secret chemical and biological warfare project during the apartheid era. He was charged with a variety of crimes, including murder, fraud and dealing drugs. After several charges were dismissed and Basson was acquitted of all other charges, the prosecutor sought permission to appeal. The prosecutor argued that the trial judge should have stepped back from the case, as the prosecutor had accused him of being biased. Also, the prosecutor held that several charges should not have been dismissed and that the bail records should have been admitted during the trial proceedings. The Supreme Court of Appeal had denied this request, after which the prosecutor turned to the Constitutional Court.

In the preliminary ruling under review here, the Court refused to grant permission to appeal, although it did held that the issues raised by the prosecution were constitutional matters. Therefore, the Court ruled, these issues fell within the jurisdiction of the Constitutional Court.

Procedural history

Wouter Basson appeared before the Truth and Reconciliation Commission in July 1998, but refused to cooperate with the Commission. He was charged in 1999 in the High Court on 67 counts. The charges included murders, attempted murder, conspiracy to murder, fraud and manufacturing, possessing and dealing in drugs. According to the charges, most of these crimes were committed before 1994, both within and outside South Africa. The trial on all charges commenced on 4 October 1999. In 2001, the trial judge dismissed all charges against Basson relating to crimes allegedly committed outside South Africa. Also, the Court dismissed the charges regarding conspiracies initiated in South Africa to commit crimes in a foreign country. In 2002, Basson was acquitted of all remaining charges for lack of evidence. The State appealed at the Supreme Court of Appeal (SCA) in 2003. The SCA refused to grant leave to appeal against the judgment of the trial court. Hereafter, the prosecutor sought leave to appeal against both the judgement of the SCA and the judgment of the High Court.

Related developments

On 9 September 2005, the Constitutional Court overturned the dismissal of the conspiracy charges. Therefore, the prosecution could have reopened the proceedings. However, a few months after the trial, the National Prosecution Authority decided not to re-prosecute Basson as the trial court had already rejected evidence relating to these charges.

In 2007, the Health Profession Council of South Africa initiated an inquiry into Basson’s conduct as a doctor during the apartheid era. The inquiry was postponed several times.

Legally relevant facts

Wouter Basson, cardiologist, was the head of the South Africa Secret Services’ biological and chemical program ‘Project Coast’ from 1981 to 1995. Although presented by the South African army as a primarily defensive program, its activities included the development of chemical weapons to neutralise anti-apartheid activists and the development of programs to reduce the growth of the black population. Allegedly, he took part in mass murder of political enemies who were detained in Namibia, and individuals who were considered as ‘enemies of the apartheid state’ in Namibia, Swaziland, Mozambique and the United Kingdom. Using chemicals provided by the army, Wouter Basson allegedly developed poisoned objects and foods such as cigarettes, whiskey and umbrellas.

Core legal questions

The prosecution Authority sought permission to appeal against the 2002 acquittal of Wouter Basson and against the SCA’s refusal to grant this permission. The prosecution presented several grounds for this permission to be granted. Most importantly, the Court held that trial judge Willie Hartzenberg should have recused himself. During an earlier phase of the proceedings, the prosecution had requested the judge to recuse himself, accusing him of bias. Also, the state presented Hartzenberg’s dismissal of charges relating to conspiracy to commit crimes abroad as a ground why an appeal should be allowed. The prosecution was of the opinion that this constituted a wrong interpretation of the law, as the conspiracy itself had been initiated within the borders of South Africa. Therefore, the prosecution argued, the conspiracy charges fell within the scope of South African law. Another question that rose before the Supreme Court of Appeal was whether the bail record constituted inadmissible evidence at the trial. The Constitutional Court had to determine whether these issues were constitutional matters within the jurisdiction of the Court and whether it would be in the interest of justice to grant the request for leave to appeal.

Specific legal rules and provisions

Sections 2, 24, 35, 39, 167, 168, 179, 232 and 233 of the Constitution.
Sections 85, 86, 88, 106, 174, 317, 319, 324 and 333 of the Criminal Procedure Act.
Section 18(2) of the Riotous Assemblies Act.
Section 21 of the Supreme Court Act.

Court's holding and analysis

The Court held that the matters raised by the prosecutor were constitutional issues. Regarding the question on whether judge Hartzenberg should have recused himself, the Court held that this was a constitutional matter as the “impartial adjudication of disputes in both criminal and civil cases is the cornerstone of any fair and just legal system” (para. 21). Regarding the question whether the admission of the bail record during the trial proceedings, the Court held that this question revolves around the right to a fair trial and that it therefore falls within the jurisdiction of the Constitutional Court (para. 25). Regarding the charges against Basson which were dropped, the Court held that a constitutional obligation existed to prosecute offences that threatened the rights of citizens (para. 32-33). This obligation gets obstructed when a Court squashes charges, the Court reasoned, and therefore this matter was within the Constitutional Court’s jurisdiction. Still, the Court did not grant the request for leave to appeal, as the Court held it to be premature at this preliminary stage of the proceedings to deal fully with the question whether it was in the interests of justice for leave to be granted (para. 40).

Further analysis

Article on the Wouter Basson trial, the first prosecution of apartheid crimes that reached the Constitutional Court in South Africa, written by Swart. Du Bois-Pedan analysed post-TRC trials like the one discussed here.