'Not just another case'

2003-11-04 17:53

Johannesburg - Apartheid-era chemical and biological warfare expert Dr Wouter Basson might not face a re-trial even if the State won the right to charge him anew, the Constitutional Court heard on Tuesday.

The State had not decided whether or not to prosecute him again, should it be allowed to do so, Wim Trengove, SC, for the prosecution, told the court.

"This is not just another case; it is a very important case, because these are very, very serious charges," he said.

This was one of the very few prosecutions that followed from the apartheid era in which a high-ranking military officer was accused of serious human rights violations, Trengove said.

"It is important for the victims and for society to know whether the acquittal was legitimate and lawful."

The State is asking the Constitutional Court for special leave to appeal against a decision by the Supreme Court of Appeal effectively preventing it from instituting a new trial, following Basson's acquittal on 46 charges - including murder, drug trafficking, fraud and theft - by the Pretoria High Court last year.

The State also wants leave to appeal to the Constitutional Court against Pretoria High Court Judge Willie Hartzenberg's refusal to recuse himself from the trial. Early in the trial the prosecution asked for his recusal on the basis of bias.

Chief Justice Arthur Chaskalson asked Trengove whether he wanted this or another court to study a 40 000-page court record and, on the basis of the judge's perceived attitude, set the judgment aside - a decision that might have no consequences.

According to Chaskalson, it would be inappropriate for the State to prosecute Basson again. It would not be fair to start it all over again while Basson's acquittal was due to no fault of his own.

"Why would it be appropriate to put him on trial in these circumstances? If it isn't, why should there be an appeal?"

Trengove said the State may decide to prosecute Basson on only a limited number of charges.

"If the State decides not to prosecute at all, the outcome of this case... still has very important public purposes.

"It would pronounce on the legitimacy or otherwise of the acquittal," he said.

The hearing continues.

- SAPA