Basson may face court again

2004-03-10 13:57

Johannesburg - The State might get another chance to prosecute apartheid-era chemical and biological warfare expert Wouter Basson.

The Constitutional Court agreed on Wednesday to consider certain constitutional issues arising from an appeal against his acquittal.

The judges agreed that constitutional implications arose from trial judge Willie Hartzenberg's refusal to recuse himself on the grounds of bias, his decision not to admit the bail record in the trial, and his quashing of six charges related to offences committed beyond South Africa's borders.

The court turned down an application by the State to appeal directly against the Pretoria High Court's acquittal of Basson.

But, it said, the constitutional issues arising from the Supreme Court of Appeal's (SCA) dismissal of the State's application for leave to appeal, would have to be pursued. The court did not say how this would be done.

The unanimous judgment did not make a decision on whether it was in the interests of justice to grant an application for special leave to appeal against the SCA judgment.

Further directions would be given by Chief Justice Arthur Chaskalson for the disposal of the application.

According to the judgment, the question of whether a judicial officer should recuse him- or herself was a constitutional matter as impartial adjudication was the cornerstone of a fair and just legal system.

The court held that the bail record was related to the question of the fairness of a trial and was similarly a constitutional issue.

In relation to the quashing of six charges under the Riotous Assemblies Act, the court found there was a constitutional obligation upon the State to prosecute offences threatening the rights of citizens.

The effect of the high court's judgment in this regard, was that the State was prevented from prosecuting Basson on these charges without having been given an opportunity to test the correctness of the court's decision.

"The Constitution makes it plain that the effective prosecution of crime is an important constitutional objective," the judgment reads.

It pointed out that the principle of "double jeopardy" - in terms of which a person could not be prosecuted twice for the same crime - might not apply to Basson were the State to succeed in its appeal on the grounds of bias on the part of the trial judge.

"It may well be that the accused will be held not to have been in jeopardy of conviction on the indictment," it said.

The principle would not apply to the six charges that were quashed, as Basson had never pleaded to those.

"At this stage of the proceedings it is not clear whether the State's appeal will succeed, and even if it did, whether the State would decide to re-prosecute (Basson)."

If it did choose to re-open the prosecution, the question of whether there had been an unreasonable delay would also have to be considered by the trial court.