Boeremag defence tries again

2003-07-29 13:29

Pretoria - New moves were afoot on Tuesday to get former president FW de Klerk to testify in the Boeremag treason trial after the Pretoria High Court set aside a subpoena calling him as a defence witness.

Paul Kruger, attorney for some of the Boeremag accused, said the defence would ask trial judge Eben Jordaan on Monday to call De Klerk as a witness for the court rather than for the defence.

"Judge Jordaan still has the discretion to call Mr De Klerk as a witness," he said.

"We will explain to the judge what our aim was with calling Mr De Klerk and ask him to consider calling Mr De Klerk himself. We believe he can give testimony that will be useful to the court."

In the morning, Transvaal Judge President Bernard Ngoepe ruled that a subpoena issued for De Klerk by 13 of the Boeremag trialists was an abuse of the court process and "bad in law".

He said the trialists expected De Klerk to testify on aspects of the law, on which he was no expert.

The former president was called to give testimony in support of the trialists' contention that the current Constitution, the government and its institutions were illegitimate. They claim the court has no jurisdiction over them.

Ngoepe said their challenge was based on the assertion that they belonged to a section of the population which did not approve of constitutional developments since 1989 - which led to the adoption of the present Constitution.

"The real issue to be decided by the trial court is, therefore, whether it is possible for a section of the population in a unitary state not to be bound by the Constitution of the country," the judge said.

"This is a legal question on which (De Klerk's) evidence would be irrelevant and inadmissible; the trial court is an expert on the law itself."

Ngoepe upheld De Klerk's application for the setting aside of the subpoena with costs, payable by the 13 trialists. They were named as the main respondents.

Kruger later said that if Jordaan refused his request to call De Klerk, he would have no choice but to refer to statements made by the former president in the past and attaching his own interpretations to them.

He indicated he would ask Jordaan to also call former Constitutional Development Minister Roelf Meyer as a court witness.

Kruger issued a subpoena for Meyer last week, but said he would now ask him to testify voluntarily. In view of Ngoepe's judgment, he expected Meyer to win should he also decide to contest the subpoena in court, Kruger said.

"If he decides not to testify voluntarily, I will withdraw the subpoena."

The men wanted the former president to give evidence in support of their argument that the National Party, under his leadership, suspended the authority or power of parliament to pass constitutional legislation.

They contend De Klerk went back on an undertaking not to pass such laws before consulting the electorate.

They also claim that certain laws which lay the foundation for the current legislative, executive and judicial authority were adopted in conflict with the 1983 Constitution while it was still in effect.

These included the Electoral Act and Transitional Executive Council Act.

Thirdly, the trialists contested the validity of the 1994 general elections, which they claim were wrongly declared free and fair. This in turn lay an irregular basis for the creation of the Constituent Assembly - which adopted the new Constitution.

Ngoepe said De Klerk could not be expected to testify on any of these issues.

The trialists wanted to question Meyer on the same aspects of the constitutional process between 1989 and 1994.

The 13 respondents are among 22 alleged members of the rightwing Boeremag organisation standing trial in the Pretoria High Court on 42 charges, including high treason, terrorism, sabotage, murder, and several firearms and explosives violations.

The State alleges they plotted to overthrow the government. Their trial resumes on Monday.

- SAPA