Subpoena 'doesn't make sense'

2003-07-25 19:03

Pretoria - A Pretoria High Court judge sharply questioned on Friday the decision by a lawyer for some of the Boeremag treason trialists to subpoena former president FW de Klerk to testify for the defence.

Pretoria Judge President Bernard Ngoepe accused attorney Paul Kruger of contradicting himself in trying to explain the thinking behind the subpoena.

It did not make sense to him, the judge said, to summons De Klerk when it was clear the former president did not support the trialists' argument that the government, its institutions and the Constitution were flawed.

"This is a very funny situation," Ngoepe told Kruger in Afrikaans. "How can you subpoena a witness to testify against your clients?"

The judge also had difficulty with Kruger's argument that his clients contested the process leading up to the certification of the new Constitution, but that they did not consider it to be invalid.

"You seem to be blowing hot and cold," Ngoepe said.

Kruger explained that his clients believed the current Constitution did not apply to them but only to those who recognised it.

He said he did not call De Klerk to testify for the defence as such, but merely to place all facts available on the matter before the trial court.

De Klerk's legal representative, Jan Heunis, SC, described the action as a "patently ridiculous argument".

"Never in my life have I heard of a legal representative calling a witness to testify on behalf of his clients without knowing what he will testify."

Kruger was arguing for the respondents in an urgent application by De Klerk to have the subpoena set aside.

The lawyer said his clients' ultimate aim was to have the court declare that the Constitution did not apply to them so that they could be tried by an ad hoc international tribunal.

In a sworn statement handed to the court, the former president said attempts to have him testify amounted to nothing more than politicking.

"I can come to no other conclusion... that the subpoena is an attempt to use the trial court as a political stage.

"I am not inclined to get involved in a political debate on the witness stand with political opponents who blame me for starting a reform process which resulted in majority government in South Africa."

Thirteen of the 22 accused entered a special plea contesting the jurisdiction of the court.

They contend voters in the 1992 referendum on a new political order were never asked to approve the new Constitution. This, they say, was in violation of an undertaking by the government of the day not to approve any constitutional legislation without a mandate from voters.

In his statement, De Klerk said no such undertaking was ever given, nor would it have been enforceable.

Heunis contended that even if the process leading up to the election of the current government could be proven invalid, the government had become the de facto and de jure government through the passage of time.

Another bone of contention is a statement the former president allegedly made that the 1994 general elections were riddled with irregularities.

De Klerk said this might be the case, but nothing could change the fact that the African National Congress had won the majority vote.

"The balance of power would not have been influenced and the election results as such would not have been invalid," he said in the statement.

Heunis accused Kruger of trying to trick De Klerk into the witness stand so that the defence attorney would be able to cross-examine the former president, which was not allowed.

Kruger contended De Klerk should be willing to testify because his successor, Nelson Mandela, had done in the 1998 SA Rugby Football Union trial - when he was still in office. Sarfu wanted the court to set aside Mandela's appointment of a judicial commission of inquiry into its affairs.

"That case was not criminal, and nobody's freedom was at stake. Yet the president saw fit to go to court and put forward his version."

Ngoepe is to give his judgment on Tuesday morning.

The accused face 42 charges including high treason, terrorism, sabotage, murder, attempted murder and the illegal possession of explosives, firearms and ammunition.

The State alleges they plotted to overthrow the government. The trial resumes on August 4.

- SAPA