Trial Report: Twelve

This report covers the period Monday 14 February to Thursday 17 February.

On Monday and Tuesday the court heard the state's application for the recusal of Judge Hartzenberg.

Chief prosecutor Anton Ackerman made the point that the decision to force Hartzenberg to step down had not been taken lightly, and enjoyed the full support of both National Director of Prosecutions, Bulelani Nguca, and his deputy, Dr Jan D'Oliveira (who initiated the prosecution of Basson three years ago while he was still attorney-general of the Transvaal Division).

According to the prosecution, the benchmark by which a judge's impartiality is measured in SA courts is the ruling of the Constitutional Court in the State v SA Rugby Football Union. In a nutshell, this means that the public is entitled to the assurance that a judge is impartial, and should not hear about any circumstances that could compromise that impartiality. The right to equal justice before the law was premised on a fair, impartial and unbiased consideration of the case before court, and even a "reasonable apprehension of bias" was grounds for recusal.

The state raised issues relating to:

1. Prior professional interest in the case and expression of a prior opinion. (Hartzenberg was involved in one of the media applications for Basson's bail hearings to be in open court, and eventually ruled that this was not in the national interest, though he did subsequently rule that the transcript of the Ecstasy bail hearing could be released to the media, heavily censored according to Basson's own guidelines)

2. A perception which was based on a series of events during the proceedings including inter alia, the admissibility of certain evidence; rulings made by the Judge and his comments.

The state argued that the timing of the Judge's ruling on the inadmissibility of the record of Basson's bail application showed bias because the ruling was made before the accused had pleaded. This record was a key piece of evidence for the state.

The state also argued that through denying the prosecution sufficient time to research English law in relation to jurisdiction issues, he had shown bias. This research, the state argued, was essential to the matter. Various other incidents were cited by Ackerman in making his point.

The only example of bias used by Ackerman which did not take place in open court, relates to the abortive attempt last August to seize Basson's assets. At the time, allegations were made in an affidavit by Basson that Ackerman and Pretorius had acted in a less than transparent manner towards the defence team. When the matter arose in Hartzenberg's chambers, he evidently "burst out laughing" about the asset seizure reversal and refused - when the defence objected to its submission - to accept an affidavit made by Ackerman refuting the defence claims that he and Pretorius had been obstructive/non-cooperative.

During discussion of the states objections to comments made by the Judge during the proceedings, Judge Hartzenberg noted that during the some 10 years of the existence of the Project R380 million had been spent on its operation. The state, in turn, stated that the alleged fraud computes to R36-million, though the lump sum allegedly misappropriated is R46-million, the balance of R10-million having been stolen through the unauthorized sale of NBC suits rather than fraudulently obtained.

The Judge gave a ruling on the recusal application at 2pm on Wednesday afternoon, dismissing the application by the state as frivolous, mind-boggling, absurd and "unfounded in its totality".

In stating his reasons for arriving at that conclusion, Judge Hartzenberg presented his understanding of the case thus far. He said that, as he understood the fraud section of the case, it was common cause that Basson was ordered to develop both an offensive and defensive CBW capacity for South Africa. The project was top secret and managed by the SADF's Co-ordinating Control Committee, on which served a handful of the most senior military officers. The need to know basis was religiously enforced and Gen. Knobel had testified that if it took theft, bribery or any other normally unacceptable means to acquire what was needed for the project, Basson was to get the goods. The CCC did not want to know where or how he did so, nor the names of people or countries involved , when, how and to whom payments were made.

To this end, Basson had been issued with three false passports by the SADF to support his cover as a wealthy international businessman with chemical interests.

Knobel testified that the SADF would have had no problem if Basson had been required to pay collaborators or spend money to help them create plausible cover stories in their own countries, in exchange for their assistance. For example, share capital could be bought, backed up with flamboyant correspondence to support such a cover story.

Gen. Knobel also testified that Basson carried out other tasks for the SADF, not connected to Project Coast, of which he knew no detail. Countries mentioned in this regard have been the US, UK, Belgium, Luxembourg, Poland, Libya and Croatia.

Gen. Knobel testified that Project Coast was an unqualified success, with not a single security breach over its 10-year lifespan. The SADF had not an inkling of funds being abused until 1994 when questions were asked about the Croatia transaction. (Mention was not made of the mid-92 internal probe into Merton House, the first indication of alleged irregularities, or even the launch of the Office for Serious Economic Offence's probe in the early 1990s).

The proceedings resumed on Thursday 17 February with the continued evidence of forensic auditor, Hennie Bruwer. Bruwer testified at length about the sale of protective clothing (Charges 65,66 and 67). The 1990 sale was made from Project Coast's "secret" depot in Pretoria West by Regent International Trading Services to Technotek, which in turn sold the suits to Armscor - which procured them for the SADF. Armscor was unaware that it was not only buying property already owned by the SADF, for the SADF, but also that it was charged an inflated price, the suits originally having been manufactured by National Tents & Sails for R356 each. The second sale, in 1991, included stock taken from the SAMS warehouse, to which Armscor's "purchase" had been duly delivered.

Details were presented of the genesis and operation of the company Regent International Trading Services (RITS) during which it emerged that RITS was set up as a close corporation in January 1987. The first deposit into the secret RITS investment account was R827 200 on the date it was opened (19 October 1990). The source of this amount cannot be identified, but Bruwer believes it was Technotek. Four days later, another R1-m, also probably from Technotek, was paid into the account.

Additional deposits were R5,2-million which is identified as being from Technotek, R250 000 from BR Holdings, R229 965 from WPW Investments, R163 200 from sale of Krugerrands (the Merton House builder, Niel Kirstein, testified that Basson paid him in cash for 16/17 Krugerrands he wanted to sell in order to buy his son a horse) and R101 000 from an unknown source.

Payments from the RITS accounts from February to August 1991 include, R453 426 was paid in cash to Wouter Basson; R900 000 paid to the Aries Trust, R50 000 to Annette Versluis, R30 000 to Mrs B Basson (likely to be Dr. Bassson's mother, Bronwyn), R16 000 to Dr M Blom (Basson's first wife), R100 000 to Wynand Swanepoel, R170 000 to Chris Marlow, R1,1-m to L Larson, the Merton House architect, and travellers cheques worth U$3 000 in favour of Mrs E Oelofsen (believed to be the mother of Antoinette Lourens) in May 1991.

R3-m was transferred to the secret account of D John Truter and R3,8-m, in two instalments, to the Karko account, one of the official Chief of Staff Intelligence front company bank accounts. By September 12, 1991, the RITS current account had been cleaned out and had a zero balance.

Earlier in the trial proceedings, it was put to Gen. Knobel under cross examination, that a large consignment of suits was "donated" to Unita by an unidentified foreign beneficiary, to be distributed by the South African Medical Services. At the time, the defence was not yet in possession of the dossier regarding the NBC investigation, and was not aware that the state had tracked the sale of the NBC suits at every stage, including details of the freight company that shipped the suits through Belgium to the Gulf during the 1991 war against Iraq.

Evidence of the forensic auditor will continue on Friday and into next week when cross examination will commence.

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]