The State v. Wouter Basson

Court	Constitutional Court of South Africa, South Africa
Case number	CCT 30/03
Decision title	Judgment
Decision date	9 September 2005
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

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 Supreme Court of Appeal had denied this request, after which the prosecutor turned to the Constitutional Court.

The Constitutional Court granted leave to appeal, as it considered that the trial court had erred in dismissing charges against Basson regarding conspiracy to murder abroad. The trial court had held that since the conspired crimes were committed abroad, Basson could not be tried for conspiracy in South Africa. The Constitutional Court rejected that reasoning, stating that there was a close link between South Africa and the crimes committed.

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 murder, conspiracy to murder, fraud and manufacturing 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). 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 judgment of the SCA and the judgment of the High Court. In a preliminary ruling the Constitutional Court refused to grant this permission, though it held that the issues raised by the prosecutor were constitutional matters and thus fell within the scope of its jurisdiction.

Related developments

Since the Constitutional Court overturned the dismissal of the conspiracy charges, 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 for appearing to be biased. 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. Another question that rose before the Supreme Court of Appeal was whether the bail record constituted inadmissible evidence at the trial. In the preliminary ruling, the Constitutional Court had ruled that these matters were constitutional issues within its scope of jurisdiction. It remained to be decided whether leave to appeal should be granted.

Specific legal rules and provisions

Sections 2, 24, 34, 35, 39, 165, 167, 168, 179, 232 and 233 of the Constitution.
Sections 60(11B), 85, 86, 88, 106, 144, 174, 190, 317, 319, 324, 333 and 366 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 relief to appeal should be granted, although two of the three grounds for relief to appeal were dismissed. The Court held that the state had failed to show that Hartzenberg’s decision not to recuse himself was incorrect, as there was no reasonable apprehension of bias (paras. 102-103). Regarding the exclusion of Basson’s bail application hearing from evidence in the trial, the Court held that such a decision should normally be left to the trial Court. A court of appeal should only intervene if there is an indication that the trial court has misused its discretion. That, the Court held, was not the case here (paras. 154, 161 and 185-187).

However, regarding the charges that were dismissed, the Court held that the SCA should have allowed the state to appeal against the dismissal of charges. Moreover, the Court held that there was a ‘real and substantial connection between South Africa and the crimes to be committed abroad. Therefore, the conspiracies were triable in South Africa and the trial court was wrong to dismiss the charges (paras. 228 and 260).

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.