Constitution 'not applicable'

2003-06-22 12:07

Pretoria - The first legal arguments in the treason trial of 22 alleged Boeremag members are expected to be heard in the Pretoria High Court on Monday - more than a month after the hearing was to have started.

Pending the resolution of disagreements between the Legal Aid Board and the accused, legal counsel for 13 of the defendants are to proceed with an application contesting the jurisdiction of the court.

Paul Kruger, attorney for the 13, said on Friday the application would be based on several grounds - including that whites voting in the 1992 referendum for or against a new order were never asked to approve the new constitution.

This was in violation of a decision by the pre-1994 parliament not to approve any constitutional legislation before the results of pro-democracy negotiations were run past white voters, he said.

This meant that the foundation for the current constitution, which in turn formed the basis of all legislative and executive judicial authority, was not legally applicable to his clients - all members of the pre-1994 electorate.

The men would also rely on an English common law rule that any form of self-government, once granted, can never be taken away.

This had in effect happened to his clients, who were able to exert real influence on governance prior to 1994, while their votes were of nothing more than academic importance now, Kruger said.

A third basis for the application would be that the 1994 national government elections were irregular - rendering the new parliament and the Constitution it adopted invalid.

Furthermore, they would argue that the current Electoral Act was adopted in January 1994 by a parliament which effectively only came into being three months later.

Should the court rule against the jurisdictional challenge, the defence would proceed to ask for the recusal of prosecutor Paul Fick, as well as challenging the indictment.

Only after all these matters have been finalised can the actual trial begin.

The trial was to have started on May 19, but was postponed last Tuesday for the fourth time over unresolved legal aid issues.

Lawyers for 15 of the accused contested decisions by the Legal Aid Board over tariffs payable to defence counsel.

Kruger and Piet Pistorius, the advocate for Kruger's clients, are to make representations to the board in July over its decision to pay them a fee equal to that of an advocate representing only one client.

The legal team of two other accused withdrew, saying they were also offered inadequate fees. Their clients refused to accept counsel appointed by the board, and were given until Monday by Judge Eben Jordaan to weigh their options.

The 22 defendants are accused of plotting to overthrow the government with the aim of declaring a Boer republic.

They face a main charge of high treason and four alternative counts each of terrorism and sabotage.

One count each of murder and attempted murder and an alternative count of conspiracy to murder are also listed. The rest of the 43 charges relate to the illegal possession, manufacturing and use of explosives, arms and ammunition.

- SAPA