No new trial for Wouter Basson

2003-06-03 14:46

Bloemfontein - The Supreme Court of Appeal on Tuesday refused the State a re-trial for acquitted chemical and biological warfare expert Wouter Basson.

In a 60-page judgment, judges Piet Streicher and Mohamed Navsa ruled the State did not have the right to appeal.

If permission to appeal was granted, the court could have set Basson's acquittal aside. Such a decision would then have entitled the State to a fresh trial.

However, a full Bench of appeal judges concurred on Tuesday that the State could not appeal against trial judge Willie Hartzenberg's refusal to recuse himself.

Hartzenberg acquitted Basson in April 2002 on 46 charges, ranging from murder and drug trafficking to fraud and theft.

At an early stage of the protracted and expensive trial, the State asked Hartzenberg to recuse himself, accusing him of bias.

Hartzenberg refused, finding their arguments in this application "trivial" and "unfounded".

This was the main issue in the State's appeal.

The appeal judges found Hartzenberg's refusal did not relate to an error of law on his part, it was a factual finding.

South African law did not grant the State the right to appeal against the factual findings of a criminal trial court, even if they were incorrect.

37 questions 'without merit'

Three other, related questions of law about which the State appealed in the case were struck from the roll on Tuesday.

The judges found one of them "of academic interest only" and the remaining two not raising any legal issue.

The State was also refused permission to appeal regarding about 37 further questions of law.

Streicher and Navsa found these questions not only without merit, but also administratively defective.

They said the State committed "flagrant non-compliance with the rules" when preparing this application. It was so bad that permission could have been denied solely for this reason.

Among the examples listed by the State in its appeal as indicating Hartzenberg's bias, were remarks during the trial.

Hartzenberg at some stage asked one of the State advocates in court "whether he has practised his signature for a long time".

The judge also told a State advocate leading testimony that he was "bored of listening to the fine detail which is put repeatedly before me".

Correct legal tests

When a State advocate remarked he was "confused" after an objection by Basson's lawyer, Hartzenberg reportedly reacted: "Well, if this is the case only now, then I am glad."

The appeal judges found on Tuesday that Hartzenberg used the correct legal test to decide the merits of each of these alleged indications of his bias.

Appeal judges Louis Harms and Ralph Zulman and acting appeal judge Jonathan Heher concurred with the judgment.

Basson was the head of apartheid South Africa's germ warfare programme in the 1980s.

He stood trial in the Pretoria High Court.

- SAPA