Trial Report: Ten

The report covers the week from Friday 28 January - Friday 4 February

Forensic auditor, Hennie Bruwer remained on the stand for the week during which time detailed evidence of the forensic audit was presented.

Financial transactions involving Antionette Lourens, David Webster and Roger Buffham were the subject of much of the testimony and evidence presented on Friday 28 January. Documents presented in court indicate that Buffham's company, CSD intended developing security products during 1987. Reference was made to payments into the CSD account. Correspondence between Webster and Basson presented in court revealed Webster's concern that Buffham did not have good business sense.

Details of financial transactions involving accounts held by Charles Van Remoortrere were also presented. Bruwer testified that Van Remoortrere's accounts were used on occasion to launder SADF funds for various secret projects. He referred to deposits made by the military from company, Executive Services, into an account held by Van Remoortrere which ultimately made their way into the account of Contemporary Systems Design, Buffham's company in the UK.

As reported last week, Roger Buffham, David Webster, Bernard Zimmer and David Chu have refused to come to South Africa to testify in the trial. The prosecution is pursuing international judicial channels in order to get their testimony on record.

Bruwer gave testimony in relation to Charges 11, 12 and 13 which refer to the alleged purchase of DNA probes, peptides and the peptide synthesizer.. Bruwer found that the U$3,2-m involved was partially used by WPW Investments, Cayman, to provide share capital for Medchem Forschungs AG (the Swiss company owned by David Chu), but the official Coast audit documents show that the authorization was for an "industrial scale" peptide synthesizer to be bought in Switzerland. On June 22, 1989, however, a letter from Basson informed the Co-ordinating Control Committee (CCC) of Project Coast that the synthesizer deal was not going according to plan.

A subsequent letter told the CCC that the synthesizer purchase would not take place at all at this time, but a quantity of the peptide Thymus could be obtained immediately. The Surgeon General, DP Knobel therefore authorized Basson to use part of the funds previously transferred abroad to make these purchases - and for the Blackdale account to be used to pay the supplier, Dr David Chu. This change of plan led to a complicated series of transactions which ultimately saw the SADF providing a performance bond for a three-way deal to sell NBC suits to a company called Copperdale, which in turn would sell them to a company called Tagell - of which the managing director was Mr. Hashemi, identified by the defence last year as the Iranian secret agent who could supply the peptide synthesizer. The NBC deal fell through and an amount of R101 000 was paid back into the Coast funds in November 1989 as interest on the performance bond. Bruwer claimed during his testimony that the NBC suits deal was a ruse and that no such protective clothing was ever to be sold.

The court also heard that in December 1989, Medchem Forschungs entered into a contract with Medchem Contract Research Company, in which Chu and Basson were the principals. Peter Matthys, previously mentioned as a director of Medchem Forschungs, acted as the attorney for MCRC, which was to provide "contractual research and charts in the fields of chemicals, pharmaceuticals, agriculture, food research and hospital supplies". The research unit to be used was Roodeplaat Research Laboratories.

Relating to Charges 14 and 15, Bruwer found that R12-m of the money paid to Medchem Consolidated Investments by the SADF for cancellation of contracts at the time of Delta G privatization, found its way to the account of Medchem Forschungs.

Charges 14 and 15 center on the R12-m paid to the Swiss account of Medchem Forschungs in April 1990, officially for payment of the research contract with RRL. Bruwer's investigation has shown that the funds were placed on a six-month fixed deposit and used as security for a U$2,3-million loan to WPW Aviation Inc and used as partial payment for the Jetstar. In a letter authored by David Webster, he claims that the WPW group of companies owned a King Air aircraft, which was leased to the United Nations for use during the elections in Namibia and further, that according to Dr Basson, the Jetstar "would be used for medical projects in Africa."

On Monday 31 January and Tuesday 1 February the court heard further details of the peptide synthesizer deals and the deal allegedly involving the purchase of methaqualone from Croatia in 1992. With regard to the peptide synthesizer, Bruwer told the court that he could find no evidence of such equipment having been purchased. The Croatian deal led to the auditor general having to write of an amount of R7million lost on the deal. Bruwer found no evidence that the 500kg of methaqualone from Croatia ever existed, nor that it was delivered, as claimed by Basson, in late November/early December 1992. Gen. Knobel testified last year that the methaqualone purchased in Croatia was destroyed in January 1993, and was reflected in the documents relating to the destruction of chemicals.

Evidence relating to trust funds established by Basson was also heard.

The court did not sit on Thursday 3 February but resumed today to hear details of the privatization of the chemical research and production facility, Delta G Scientific.

On Monday 7 February court opened with an application from the prosecution for an adjournment. The state prosecutor, Adv. Anton Ackerman requested the adjournment in order to give the Director of Public Prosecutions time to study the official transcript of Friday's hearing so that he can decide whether or not to bring an application for Judge Hartzenberg to recuse himself from the case. The judge told the court that he had discussed the matter with the Deputy Judge President, Justice Eddie Stafford, who felt that a week was an unnecessary delay and that the decision should be made sooner.

Defence counsel, Adv. Jaap Cilliers said he would vigorously oppose an application for recusal, as there appeared to be no basis for it "except for certain media reports over the weekend" which, Cilliers claims, he did not see. He said could see no merit in the State's proposed application, which, if granted, would seriously impinge on his client's constitutional right to a speedy trial.

If the Director of Public Prosecutions indeed decides to apply for a recusal, Hartzenberg himself will hear the recusal application arguments, and will decide as to whether or not he is replaced. In the event of the Judge rejecting the application, the trial will continue with Judge Hartzenberg presiding. At the end of the trial, once judgement is pronounced, and if it were in favour of the accused, the prosecution could appeal using the request for recusal as a basis for the appeal. The law does however, make provision in extraordinary circumstances for his decision, at this stage, to be referred to a full bench for review.

The implications of a successful application, in other words if the Judge does recuse himself, are a likely delay of several weeks, or possibly months while a replacement is found. Pretoria judges are already assigned to cases at least for the rest of the current term, and in some cases, even for the next term. The case would start again with all the original charges and the application for the dismissal of some of those charges, since a different judge might hold different views on the question of jurisdiction and even, possibly, the Namibian amnesty. Likewise, the admissibility of the bail application record would have to be dealt with anew. All the witnesses who have already testified would have to be called again. The cost implications are enormous.

The long-term implications are equally serious. Legal precedent exists for a mid-trial recusal to be declared wrongful by the Appellate Division. In other words, if Judge Hartzenberg steps down and his successor convicts Basson, and the defence takes it on appeal and the appeal court finds that grounds for Hartzenberg's recusal were not justified - the conviction can be overturned on those grounds alone.

The trial will resume on Wednesday 9 February 2000 to hear the decision of the Director of Public Prosecutions, Silas Ramaite.

This report has been prepared by Chandr� Gould and Marlene Burger. Chandr� Gould is a research associate at the Centre for Conflict Resolution working on the Chemical and Biological Warfare Research Project. Marlene Burger is monitoring the trial as part of the CCR Chemical and Biological Warfare Research Project. The Chemical and Biological Warfare Research Project is funded by the Ford Foundation, the Friedrich Ebert Stiftung and the Norwegian Government

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