Trial Report: Two

The Basson trial went into recess last week after a ruling by Justice Hartzenberg on 12 October. Court resumes again on Monday 25 October.

In a 90-minute judgement last Tuesday, Judge Willie Hartzenberg ruled that six of the eight conspiracy to murder charges against Wouter Basson had to be withdrawn by the State. His ruling is based on his interpretation of the relevant clause of the Criminal Procedure Act, which does not allow prosecution in a South African court for crimes committed on foreign soil.

Hartzenberg also found that, in any event, Basson could not be prosecuted for crimes committed in Namibia, since the amnesty granted in June 1989 (and extended in February 1990 to specifically cover all members of the SA and SWA security forces) had been recognised by the present Namibian government and thus indemnified Basson from prosecution in South Africa "for crimes which Namibia does not wish to pursue".

Despite the fact that the same prosecution team successfully charged Eugene de Kock in 1995 with conspiracy to murder for crimes committed outside the country (attempted murder of Dirk Coetzee, murder of Vlakplaas operative Brian Nqulunga in what was then Bophuthatswana) Hartzenberg found that this had been tantamount to the State "creating a new crime".

Since De Kock's defence team never challenged the charges and the matter was never argued, the Basson case ruling is the first in SA on this matter.

The charges that have been withdrawn include Charge 31, involving a conspiracy to murder enemies of the state and own security force members who present a security risk. Actions emanating from this policy include the poisoning of 200 Swapo prisoners of war in a detention camp and the murder of five Swapo members at Fort Rev, Ondangwa - the only murder charges, which actually placed Basson at the scene. Basson will also not be charged for other murders that took place outside the borders of South Africa including those of Gibson Mondlane in Mozambique and Enoch (Knox) Dlamini in Swaziland. Also not to be heard is charge 61 involving a plot by an SADF hit squad (the CCB) to contaminate the water of a Swapo transit camp with cholera shortly before the Namibian elections.

Hartzenberg upheld the State's right to prosecute Basson on Charge 45 - death of a Swapo member who was fed poisoned "jungle juice" in Owamboland but flown to 1 Military Hospital for treatment on the grounds that he had died within the court's jurisdiction.

The fate of Charge 59 - hanging of baboon foetus in Archbishop Desmond Tutu's garden - is still undecided. The judge ruled that as presently formulated, it does not constitute the crime of intimidation, since no actual threat was issued. The State has the opportunity to reformulate the charge, or amend it. If this cannot be done, it, too, must be dropped.

On Charge 63, also challenged by the defence, the judge made the extraordinary ruling (not requested by the defence) that while the charge may stand on the grounds that some of the resulting actions took place in SA (murders at Zeerust, etc) the defence has the right to object to all and any evidence that may be presented in relation to the six withdrawn charges.

This could pose a serious problem for the State, since without being able to present a full account of the CCB's policy, methods of operation, etc, it could be hard-pressed to convince the court of Basson's guilt in regard to the remaining murder/attempted murder charges. Lack of this evidence would effectively remove the motives for the remaining 14 murders as well.

The State could face a further major obstacle in that at least some of the secret witnesses lined up to testify in return for indemnity from prosecution may now decide, in the light of the fact that they are implicated only in the six withdrawn charges and/or are covered by the Namibia amnesty, not to give evidence after all.

It would appear that the prosecution has a limited right to appeal against the judgement, which is likely to mean that the trial will go ahead with the exclusions as ruled by the Judge.

Even though Basson has still not been asked to plead and his trial has thus not formally begun, Hartzenberg granted the defence's request that his bail conditions be relaxed for the duration of the trial. He thus no longer has to report to a police station once a week. The State did not oppose the request.

Centre for Conflict Resolution, UCT, Private Bag, Rondebosch, 7701, South Africa Tel: (27) 21-4222512 Fax: (27) 21-4222622 Email: [email protected]