Trial Report: Forty

This report covers the period Monday, 19 February - Friday, 24 February, 2001

Monday, 19 February 2001

Supervisory Special Agent Mary Rook, a 17-year veteran of the Federal Bureau of Investigation, was called to testify about the integrity of the chain of custody during the investigation into the poisoning of Rev Frank Chikane in 1989.

Before she began testifying, defence counsel Adv. Jaap Cilliers objected to Rook being called at all, on the grounds of relevance and hearsay. Cilliers argued that whatever evidence Rook could give was inadmissible, and would never become relevant. He had given notice earlier to State prosecutor Torie Pretorius that should facts surrounding the Chikane investigation be placed in dispute, the defence reserved the right to argue that Rook's testimony was inadmissible in totality. He did not object to the testimony but placed on record the fact that the defence would make no admissions about the Chikane investigation.

Rook's testimony related to the gathering and testing of material evidence in the Chikane investigation.

The prosecutor then called Dr Jan D'Oliveira, former attorney-general of the Transvaal and presently Deputy Director of Public Prosecutions. D'Oliveira was asked to explain the position of the former Special Investigation Unit which fell under his authority. This was the unit which initiated the prosecution against Basson. D'Oliveira explained that the unit, which had as its purpose to pursue prosecutions, was at times at odds with the Truth Commission. This happened when the Special Investigation Unit and the Truth Commission were investigating the same case. D'Oliveira was called to counteract statements made by the defence to the effect that there had been an agreement between the TRC and the SIU to pressurise Basson into appearing before the Commission while at the same time protecting certain state witnesses from testifying at the TRC hearing.

D'Oliveira said that during the TRC's hearings into the former chemical and biological warfare program, he was pressurised to supply information and/or witnesses the SIU had found. He refused to do so, and sent an official objection, in writing, to the TRC's insistence that Basson, Philip Mijburgh and Wynand Swanepoel testify at the 1998 hearings. He pointed out that he was in the process of preparing for a "major" criminal trial against Basson, and that Mijburgh and Swanepoel were, prima facie, suspects in regard to various poisonings. By compelling all or some of these suspects to answer questions at the TRC would be tantamount to forcing them into self-incrimination, and he objected to this.

But, D'Oliveira said, he had no control over the TRC or who they called, and having placed his sentiments on record, he kept his distance from the TRC as far as was possible. Basson's legal representatives were fully aware of his attitude regarding the TRC's insistence that Basson should testify before them. Despite this, Pretorius pointed out, the impression has been created in court that the State acted improperly in preparing the case against Basson.

In cross-examination, Cilliers asked why D'Oliveira had been so opposed to Basson testifying before the TRC. D'Oliveira responded that this could have had extremely negative effects on the pending criminal proceedings. Like any accused, Basson was entitled to his full day in court, and by forcing him to answer possibly self-incriminating questions, as he pointed out in his letter to the TRC, "proof of guilt will be made impossible".

Cilliers put it to D'Oliveira that it was unfair that Office for Serious Economic Offences prosecutor Dawie Fouche, who acted during Basson's second bail application on D'Oliveira's behalf, had met with SADF representatives and advised them to immediately halt all financial aid for Basson's defence in light of the "massive" fraud he allegedly perpetrated. He said Fouch� had obtained a written undertaking from the SADF that it would do so, and then issued a warrant, later the same day, for Basson's arrest. D'Oliveira said it was not at all unusual, in the case of a large fraud case against a State department, for the prosecution to advise the department not to pay the legal fees of an accused. Cilliers pointed out that the normal procedure would be that an accused public servant signs an undertaking that if found guilty, the State will be entitled to recoup all defence costs.

D'Oliveira also answered questions about the statements made by witnesses in the trial, saying they were not forced to testify against Basson.

The next witness was Wentzel Diedericks, a member of the SIU from February 1995. Diedericks testified about interviews conducted with certain witnesses in the case, reiterating that they had not been forced to testify.

The next witness was General Ernst Nieuwoudt, who retired from the SADF after 38 years, all but four of which were spent in Military Intelligence's counter-intelligence section. He was responsible for dealing with cases of espionage in the SADF and in 1983, as a brigadier, was in charge of all counter-intelligence investigations. He testified that in 1983 he was informed by the Directorate Covert Collection that there was a source inside the SADF who was passing highly sensitive operational information to the ANC about flight schedules, air crews, cargo and destinations.

Nieuwoudt was ordered by then Chief of Staff Intelligence, General Pieter van der Westhuizen, to find the leak as a matter of priority. By a process of elimination, Nieuwoudt established that the only possible source of the information was Roland Hunter.

He informed the Chief of Staff Intelligence accordingly, expecting Van der Westhuizen to instruct him to immediately inform the security police. Instead, Van der Westhuizen told him Dr Basson had a plan to solve the problem. Basson then came to Nieuwoudt's office at Military Intelligence headquarters and laid out the plan. Hunter was to be taken to the South West Africa operational area, where he would be killed in a way that would "imitate" a lethal snakebite. Nieuwoudt's next step would have been to report this to Van der Westhuizen, but before he could do so, Van der Westhuizen told him no further action was required on Nieuwoudt's part, and that the head of Hunter's unit would handle the matter through the security police.

During cross examination Cilliers pointed out differences between Nieuwoudt's testimony and earlier testimony from Dr. Daan Goosen regarding the handing over of a snake to Basson, he said that the time frames did not match. Cilliers put it to Nieuwoudt that Basson denies ever telling him there was a plan to kill Hunter and make it look like snakebite.

The final witness of the day was Mr Z who may not be identified or photographed. Born in South Africa, his family soon moved to Rhodesia. In 1965, he joined the British South African Police, serving in the Special Branch from 1970 to 1980, during which period he was involved in numerous pseudo operations. In July 1980, he was recruited to the SADF's Special Forces. He was an early member of D40/Barnacle and recruited a number of operators to the covert operation. His specific area of responsibility was external urban operations.

Mr Z testified that Sergeant Rocky van Blerk was a Barnacle "eliminator" who served under his command. Asked if he had ever seen poison, Mr Z said once only - it was a clear, jelly-like substance, and was intended for application to the door handle of a flat and the door handle of a car. He also saw a small syringe in a packet, which he was told was the antidote. Both items were in Van Blerk's possession. Asked from whom Van Blerk had obtained these items, Mr Z was prevented from answering on the grounds of hearsay. Cilliers said he had consulted with Van Blerk, while the State had interviewed another person who was with him when the toxins were handed over. Cilliers claimed that the State did not intend calling this person, since his denial of who handed over the toxins did not suit its case. Legal argument was presented and the Judge ruled that the evidence was inadmissible. No further questions were put to Mr Z.

Tuesday, 20 February 2001

The first witness was Rear-Admiral Paul Murray, the SA Defence Force's Chief of Staff Finance until his retirement in November 1993. Murray said that while he held this position the SADF annual budget was about R12 billion. Murray said that among the most sensitive SADF projects were the Civil Cooperation Bureau, the nuclear arms programme and Project Coast, but like several witnesses before him, he did not classify Coast as the most sensitive project ever within the SADF. He confirmed that it was ultra-sensitive, but nevertheless subject to the exact same financial controls and regulations as any other classified project.

Murray was a member of the Co-ordinating Management Committee of Project Coast from 1992, when it was decided to normalise the project. Asked to comment on claims before the court that the CMC operated in terms of its own rules and regulations governing Coast finances, Murray said this was not the case. The CMC's task was to control budget expenditure, but at all times, it was subject to Treasury regulations. Unless the CMC had made special application to the Treasury to function in a different manner, it was not authorised to make autonomous financial decisions. Murray said that classified SADF projects were funded from the Special Defence Account.

Asked to comment on former surgeon-general Gen Niel Knobel's testimony that Project Coast had an objective-driven budget, which amounted to the project officer being told: Here's the funding, bring in the results we have spelled out, at all costs, and the CMC does not wish to know the details of how this is done, Murray said he had no knowledge that the CMC took this approach at any time.

The judge intervened, pointing out that Murray could only speak for the CMC from 1990 and asked if the CMC's approach prior to this date could have been as Gen Knobel explained. Murray said he could not believe this to have been the case. He said that the CMC was never authorised to make its own rules and regulations about financial control of Coast, and that was the case long before he served on the CMC from 1992.

At CMC meetings which he attended, discussions were not confined to budgets only, but included the aims and objectives for which funding was required. Murray's first Project Coast budget was for the 1993/94 financial year, tabled in 1992. No scientists addressed or advised the CMC regarding their specific needs. Murray points out that by the time he became actively involved, the project was winding down, but nevertheless, no outsiders ever attended a CMC meeting he was at. He said Project Coast was not unique in having an objective-driven budget. This principle applied to the entire SADF and, for that matter, all State departments. It was the task of the SADF Chief to set the objectives, and to submit a budget that reflected how much money was needed to achieve them.

Murray said that in mid-1992 he wrote to Knobel seeking details of certain past expenditure because he was extremely unhappy with the way Coast had been run financially. His files contained no contracts for Coast acquisitions, as they ought to have, since all contracts entered into on behalf of the SADF should have been signed by the Chief of Staff Finance. Murray's department was expected to make payments in terms of Coast contracts of which there was no record, he was not happy with this and wanted the contracts from Knobel. The response he received was from Basson, listing outstanding contracts as those in respect of research and protective clothing and equipment. But Murray wanted the actual contracts, or at the very least, copies of them. He went back to the surgeon-general with his request, but never did get copies of any contracts related to Project Coast. Various excuses were offered: the contracts were locked up in a safe "somewhere"; the only person with access to the contracts was abroad; the contracts had been preserved in a safe place and were not readily available. Murray was also unable to get copies of the minutes of CMC meetings prior to 1992.

Asked to comment on Knobel's agreement with Cilliers' statement that chemicals, NBC suits and other equipment acquired for Coast were not reflected in the SADF records because they were "too sensitive", Murray said this was not true. All other ultra-sensitive equipment paid for by the SADF was reflected in the books somewhere. There were special methods of recording such items, and this applied to all other equipment acquired by clandestine means. Obviously, such records were not open to general access, but they did exist, and formed part of the overall SADF records.

Murray says there is no reason, for example, for 45 000 NBC suits not to be on the SADF books, particularly since they were intended for issue to troops. In fact, the more sensitive the equipment, the greater the need for proper and strict control over its use.

Murray was part of the CMC decision to privatise the front companies, Delta G Scientific and Roodeplaat Research Laboratories. He said all the proposals for privatisation were formulated and presented by Ben Raubenheimer and Basson. He also said that Basson had a clear duty to disclose any direct or indirect benefit that would accrue to him personally from the privatisation. He should also have disclosed any joint financial interests he had with Dr Philip Mijburgh.

Murray answered questions pertaining to the Croatian deal, during which Basson claimed to have purchased 500kg of methaqualone through the Croatian Minister of Energy Affairs. Murray said he had been unhappy with the explanations offered by Basson pertaining to the loss of SADF funds in the deal. He also testified about other specific deals.

In cross examination Murray said that Project Coast documents prior to 1992 were missing and that he had concluded that this was partly due to bad management and partly due to negligence. His problem had been that in mid-92, he could find no records of the procedures followed prior to this, and this was of great concern to him, since one of the characteristics of fraud being perpetrated is that the financial records are incomplete, and in this way, money goes missing.

Cilliers put it to Murray that it was in light of sanctions that Petro Theron was appointed to audit the project. Murray said Theron's appointment went further than that - initially he was appointed by the SADF, then his brief was extended by the Auditor-General, but his appointment was at the personal behest of PW Botha. He agrees that Theron was a seasoned auditor, and that the only misgivings he ever expressed about Coast expenditure concerned the Croatian deal - but says he is not equipped to criticize the way in which Theron went about his audits.

Cilliers said that Basson can not be held accountable for the fact that the Co-ordinating Management Committee did not follow the rules and procedures.

Wednesday, 21 February 2001

Former Special Investigation Unit member Mike Holmes - one of the chief investigators against Basson from his arrest on January 29, 1997 until April 2000 - was called. His initial testimony was largely technical, dealing with how he had preserved the containers of substances retrieved from Basson's trunks and sent them to the SAP Forensics Laboratory for tests.

Holmes took over a dossier opened in 1993 by a regular police officer when drums of what was found to be methaqualone were removed from the premises of Delta G Scientific at the time of its sale to Sentrachem. He was also responsible for the investigations into the alleged (?) murder of Dullah Omar, the baboon foetus at Archbishop Desmond Tutu's home and the attempted murder of Rev. Frank Chikane. He testified about his investigation into the NBC suits and his failed attempts to locate the medical records of a man who was said to have bled to death at 1 Military Hospital.

In cross-examination, defence counsel Jaap Cilliers accused Holmes of interviewing a wide range of witnesses without taking formal statements from them, because their testimony did not implicate Basson. Holmes denied the allegation.

Prosecutor, Werner Bouwer then took over, calling Karel Koen, security manager at Delta G Scientific from 1982 to 1988.

In 1988, after having resigned from Delta D Scientific Basson called Koen to his office and told him that if he wanted to go into business on his own, Basson could assist him. Basson said he would talk to Dr Philip Mijburgh and arrange that Koen take over the full complement of security guards at Delta G, then contract their services to the company. Basson said Koen could take over the company SRD Electronics. Koen did so and all Delta G security guards were transferred to the payroll of Protection Management Services, Koen's new name for SRD. Tjaart Viljoen of Wisdom Finance assisted Koen with loans to get going, which Koen was never obliged to pay back.

Koen said that on Basson's recommendation he travelled to the UK to see Roger Buffham, and was "extremely impressed" with the Contemporary Systems Design (CSD) factory and laboratory. Koen's air ticket was paid for by Basson. The first meeting with Buffham culminated in CSD supplying Koen with a range of demonstration and exhibition kits for the equipment he hoped to sell to state organisations in South Africa. Koen however only managed to find buyers for one item supplied by CSD: a cable which served as a transmitter.

PMS was ultimately scaled-down and Koen became involved in marketing the security dogs bred and trained at Roodeplaat Breeding Enterprises. Soon after having become involved he was informed that the company was closing down.

During cross examination Cilliers claimed that throughout Koen's association with Buffham, sanctions were in force, and that while a private company could import certain electronic equipment, the security forces could not. The easiest way for the security forces thus to acquire certain items was therefore to set up an ostensibly private company involved in commercial trade.

Koen said he was not aware of this. He denied having imported any equipment for the SA Defence Force. Cilliers said he had done so. but was not aware of the fact that his company was used as a front for SADF acquisitions, and in fact, it was the SADF which had paid for Koen's trips to the UK.

The court did not sit on Thursday to give the lawyers time to prepare legal argument. Pretorius will argue that witnesses be allowed to testify about chemical interrogation despite their testimony not being about the alleged chemical interrogation of one of the men suspected of being involved in the murder of Orlando Christina.

It is expected that the state will close its case by the end of next week. Adv. Cilliers will then seek an adjournment to prepare argument for his first application for dismissal of charges relating to the possession of drugs. Another adjournment will follow while he prepares argument for dismissal of the human rights violation charges, and finally, he will challenge the fraud charges. The judge will not give interim rulings, but is expected to pass judgement on the dismissal of charges by the end of May. Depending on the outcome of the applications, and whether or not any charges against Basson remain, Cilliers has indicated that Basson may take the stand in June or early July. How long he will testify will depend on what charges remain to be addressed. It is not known whether the defence will call any other witnesses. It is unlikely that judgement in this case will be passed before October this year.

This report has been prepared by Chandré Gould and Marlene Burger. Chandré  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]