ISS's Basson appeal dismissed
2004-12-02 14:29
Johannesburg - The Constitutional Court dismissed on Thursday an application by the Institute for Security Studies to join an appeal bid by the State against the acquittal of apartheid-era chemical and biological warfare expert Dr Wouter Basson.
"The application was refused," court registrar Martie Stander said. "Reasons will be furnished in due course."
The institute sought permission to join the proceedings as an amicus curiae (friend of the court) to allow it to present arguments on the legal implications arising from the failure to hold Basson accountable under international law.
An application by the State for special leave to appeal in the Basson matter is to be heard by the 11 Constitutional Court judges in February.
The State is challenging a Supreme Court of Appeal refusal in May 2002 to entertain its petition for the court to consider a question of law concerning the trial court's quashing of certain charges.
In March this year, the Constitutional Court agreed to consider certain issues arising from the application for leave to appeal against the Appeal Court judgment.
At issue was trial judge Willie Hartzenberg's refusal to recuse himself on the grounds of bias, his decision not to admit the bail record in the trial, and his quashing of six charges related to alleged offences committed beyond South Africa's borders.
Some of these related to a conspiracy to murder about 200 members of the South West African People's Organisation (Swapo) in Namibia and dispose of their bodies by dropping them into the sea from an aeroplane. They also involved the poisoning of the water supply of a Swapo refugee camp water with cholera bacteria in 1989.
In its heads of argument, the ISS said on Wednesday it wished to make submissions regarding South Africa's international law obligations concerning crimes against humanity and war crimes.
The institute intended advancing submissions not yet canvassed, which it believed would be of assistance to the court.
"... it is in the interests of justice that these submissions which address the important question of South Africa's international and constitutional obligations to effectively prosecute conduct which amounts to international law crimes, are placed before the court," the heads of argument read.
Among other things, the institute wished to make submissions on the legal and political consequences of a failure by South Africa to prosecute and punish international crimes.
The ISS conducts research and engages in advocacy on matters concerning security in Africa.
The State consented to the ISS being admitted as an amicus. Basson's legal team said it was not in principle opposed to the move, but viewed the ISS's intervention as irrelevant.
If it succeeded in its appeal, the State could opt to re-open the prosecution against Basson.
Basson was initially charged with 67 crimes. After six charges were quashed and Basson later got a discharge on several others, he was acquitted in the Pretoria High Court in April 2002 on 46 charges --including murder, drug trafficking, fraud and theft.
The State applied for Hartzenberg's recusal four months into the trial, saying he had prejudged the case. He dismissed the application.
In May 2002, the Appeal Court dismissed the State's application for leave to appeal. It held that Hartzenberg's recusal and the bail record were questions of fact, not law, and could therefore not be reconsidered.
The Constitutional Court found in March that the Appeal Court had erred in this regard.
The question of whether a judicial officer should recuse himself was a constitutional matter, as impartial adjudication was the cornerstone of a just legal system, it said at the time.
Sapa
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- SAPA