The State v. Wouter Basson

Court	Supreme Court of Appeal, South Africa
Case number	404/2002 and 293/2002
Decision title	Uitspraak (Verdict)
Decision date	3 June 2003
Parties	The State (Republic of South Africa) Wouter Basson
Categories	Human rights violations
Keywords	murder, attempted murder, conspiracy to murder, fraud and manufacturing, possessing and dealing in drugs
Links	Uitspraak (Verdict)

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. He mainly held that the judge should have stepped back from this case, as the prosecution had accused him of being biased.

However, the Supreme Court of Appeal held that only the defendant could appeal against factual questions and the Court considered the question of bias to be a factual question. Other reasons given by the prosecutor for appeal were dismissed as well. For example, the Court held that the prosecutor should have appealed against the dismissal of several charges at an earlier stage.

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).

Related developments

The prosecution appealed to the Constitutional Court and presented three grounds of appeal. The first ground related to the dismissal of the conspiracy charges. The prosecution reasoned that the crime of conspiracy itself had been committed in South Africa. Plans had indeed been made to commit crimes abroad, but the conspiracy itself was punishable under South African law, the Court held. Secondly, the prosecution protested against the fact that the trial court had excluded the evidence from the bail proceedings and thirdly, the prosecution stated that the trial court had erred in acquitting Basson on the remainder of the charges. 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. 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 raised before the Supreme Court of Appeal was whether the bail record constituted inadmissible evidence at the trial.

Specific legal rules and provisions

Sections 319(3) and 317(5) of the South African Criminal Procedure Act.
Article 18(2) of the South African Riotous Assemblies Act.

Court's holding and analysis

The application for leave to appeal was dismissed by the Supreme Court of Appeal. Regarding all grounds for appeal, the Court held that these were questions of a factual nature, against which no appeal by the prosecutor was possible, were purely academic or insufficiently substantiated.

Specifically with regard to the question whether the judge should have recused himself, the Court held that, if a request for recusal based on the argument that the judge is biased is denied, this is a factual conclusion which can only be appealed by the defendant, not the state (paras. 3 and 19-21). When the state wishes to appeal against the refusal of the trial Judge to recuse himself on the basis that the trial Judge made a mistake of law, this will only be sustained if there is a reasonable prospect that the application for recusal of the trial Judge would have succeeded if a mistake of law had not been made (para. 11).

Specifically with regard to the question whether the judge had erred in dismissing the conspiracy charges, the Court held that the prosecution should have appealed against this dismissal directly after the judge had decided on this (para. 70).

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.

M. Swart, ‘The Wouter Basson Prosecution: The Closest South Africa Came to Nuremberg?’, Heidelberg Journal of International Law, 2008, Vol. 68, pp. 209-226.
A. Du Bois-Pedain, ‘Post-Conflict Accountability and the Demands of Justice: Can Conditional Amnesties Take the Place of Criminal Prosecutions?’, SSRN, 21 June 2011.

Instruments cited

South African Criminal Procedure Act 51 of 1977, 22 July 1977.
South African Riotous Assemblies Act 1956, Act No. 17 of 1956.

Related cases

Constitutional Court of South Africa, The State v. Wouter Basson, Case No. CCT 30/03, Judgment, 4 March 2004.
Constitutional Court of South Africa, The State v. Wouter Basson, Case No. CCT 30/03, Judgment, 9 September 2005.