Basson retrial bid to ConCourt

2003-11-03 14:55

Pretoria - The Constitutional Court is to hear on Tuesday why or why not it should grant a retrial of apartheid era chemical and biological warfare expert Dr Wouter Basson.

The state is seeking leave to appeal against a ruling of the Supreme Court of Appeal in this regard.

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

Early in the trial, which started in 1999, the state asked Hartzenberg to recuse himself on the grounds that he was biased and had prejudged the case.

Hartzenberg refused.

In applying for leave to appeal the acquittal, the state cited Hartzenberg's refusal to recuse himself. This, it claimed, was a question of law.

In terms of South African law, the state cannot appeal against the factual findings of a criminal trial court, even if they were incorrect.

Hartzenberg allowed the state to proceed to the Supreme Court of Appeals.

In June this year, that court ruled the state did not have the right to appeal against Hartzenberg's refusal to recuse himself.

A full bench of appeal judges ruled that the refusal did not relate to an error of law on Hartzenberg's part, but it was a factual finding.

The court also struck three other, related questions of law on which the state appealed from the roll, and refused it permission to appeal regarding 37 further questions of law.

It was found these questions were without merit and administratively defective. The state's "flagrant non-compliance with the rules" alone in preparing the application was reason enough to deny permission to appeal, the judgment said.

The state's application to the Constitutional Court is aimed at securing special leave to appeal the judgment of the Supreme Court of Appeal.

The reasons why this should be granted, it says, include Hartzenberg's being biased and his refusal to allow the bail record to be used in the criminal trial.

It also cites Hartzenberg's decision not to allow the prosecution to proceed with charges against Basson under the Riotous Assemblies Act. These charges related to allegations that Basson had conspired with others to murder a number of people abroad.

Hartzenberg ruled that the Act did not cover offences outside the borders of South Africa.

Basson is opposing the application, maintaining that the Supreme Court of Appeal made the correct judgment.

- SAPA