Basson bid starts in ConCourt

2003-11-04 12:50

Johannesburg - A legal rule that restricts the State's right to appeal a High Court decision to quash certain charges was wrong and irrational, the Constitutional Court heard on Tuesday.

Wim Trengove, SC, for the State, was arguing in its bid to secure a retrial for Dr Wouter Basson, chemical and biological warfare expert in the apartheid era.

Pretoria High Court Judge Willie Hartzenberg last year acquitted Basson on 46 charges - including murder, drug trafficking, fraud and theft.

Earlier in the trial he upheld the defence's objection to six charges under the Riotous Assemblies Act on the basis that these related to conspiracy to commit offences abroad and therefore did not fall under the scope of the legislation.

This was one of the matters which the prosecution pursued in the Supreme Court of Appeals (SCA) after the acquittal.

The SCA, however, held that the Criminal Procedure Act did not allow the State to object to this ruling as a matter of law.

On Tuesday, Trengove argued that the effect of the so-called Adams rule, a legal rule of some 15 years' standing, was to deny the State an appeal altogether on a charge which was set aside on a point of law.

It restricted the powers of appeal on an irrational basis, he said.

The State wants special leave to appeal the SCA's findings in the Constitutional Court.

Besides the matter of the dropped charges, it is citing Hartzenberg's refusal to recuse himself early in the trial, which the State wanted him to do, claiming he was biased.

Another matter which the prosecution is challenging is Hartzenberg's refusal to allow the record of the bail hearing to form part of the main trial.

The hearing continues.

- SAPA