Trial Report: Forty-Two

This report covers the period Friday, 2 March - Friday, 30 March 2001

The court was not in session between 2 and 12 March, proceedings resumed on 14 March 2001. Argument was heard from both the defence and the prosecutors in regard to the dropping of charges against Basson. The nature of these reports precludes full reporting of all aspects of the argument and must be regarded as a summary.

Wednesday March 14, 2001

The defence argument for dismissal of the drug charges was presented by Adv Tokkie van Zyl, who told the court that the State had only the word of Grant Wentzel that Basson had supplied him with the 3 156 capsules of Ecstasy seized during the three sting operations in January 1997.

Adv Van Zyl argued that Wentzel had made this accusation for the sole purpose of saving himself from prosecution after his arrest, realizing that he was in "deep trouble" for selling Ecstasy to police reservist Fred Scherf. Wentzel had implicated Basson because he hoped that by doing so, he would himself escape prosecution, and it was only after he had agreed to cooperate with the police that Wentzel named Basson as his supplier.

There was no basis, Adv Van Zyl claimed, on which the court could find that Basson was, indeed, Wentzel's supplier, or that Basson had knowingly given Wentzel Ecstasy capsules during sting operation. The transcript of the conversation between Basson and Wentzel at this meeting showed that the words "drugs", "Ecstasy" and "capsules" were never mentioned, while there was mention of Denel, supporting Basson's claim that he thought Wentzel was talking about an arms deal. It was a very strange drug deal, Van Zyl argued, in which "everything but drugs" was discussed by the two men.

Adv Van Zyl said that the money that Wentzel had given Basson was payment in respect of a loan which Basson had given him. He argued that Basson never gave Wentzel the drugs as alleged by the State.

But, said the Judge, the cold fact was that on the morning of January 29, Wentzel had received more than 1 000 Ecstasy capsules from Basson during the police operation, and Basson had been given R60 000 by Wentzel, so the accused himself would have to explain to the court what had happened at Magnolia Dell.

Van Zyl said the Judge could not see this operation in isolation, but had to view it against the bigger picture, and should bear in mind the various statements made on behalf of the accused by his defence team. He should also bear in mind that Basson, according to police evidence, was "visibly relieved" to find that the people pointing firearms at him in Magnolia Dell were South African Narcotics Bureau (SANAB) members, and that although Basson's house was searched after his arrest, Wentzel's home was never searched after his arrest in Rustenburg.

Regarding the forensic evidence that the Ecstasy in the capsules seized during the sting operations and that in the capsules found in Dr Johan Koekemoer's office were "most likely" from the same source, even if the court found that the Ecstasy came from Delta G Scientific - which the defence does not admit - there was no direct link between the substance and Basson. Wentzel knew Jerry Brandt, Gert Lourens, Barry Pithey and others who had access to Delta G Scientific.

But, said the judge, the court surely had to consider whether during/prior to the January 1993 destruction of the SADF's drugs, the accused had not perhaps stolen a drum or two of Ecstasy, and capsule shells.

That would be pure speculation, said Van Zyl - there was no evidence before court to support such a scenario - and even if the capsules could be traced back to Delta G Scientific, there was no link to Basson.

There was no evidence before court either, said the judge, of the controls exercised over the Ecstasy after delivery by Koekemoer. He asked whether Gert Lourens, Hennie Jordaan or anyone else could have stolen a quantity of the substance somewhere along the way? There were several people who knew that Ecstasy was being made at Delta G Scientific - was it not possible that someone might have swopped a drum or two for something else prior to the destruction flight? That, too, would be speculation, said Adv Van Zyl.

Adv Van Zyl said that regarding charges 28 and 29, the substances found in the trunks seized at Sam Bosch's home, the court had to ask: Were these items in Basson's possession and, if so, was it illegal for him to have them? There was, in fact, no evidence that the contents of the trunks did belong to Basson - Bosch had testified that the trunks were dropped at his home by Dr Philip Mijburgh, and the court had been informed that Basson had nothing to do with the packing of the trunks, and was in Libya at the time. Dr Andre Immelman had testified that he packed the trunks and handed them over to Mijburgh, and there was nothing to link Basson to the contents.

Adv Van Zyl pointed out that, should the court find that Basson did know about the drugs in the trunks, it would then have to decide if he, as head of Project Coast, was not perhaps perfectly entitled to be in possession of them, given the testimony that the South African Defence Force had permission from both the Minister of Law & Order and the Police Commissioner to be in possession of illegal substances.

Adv Van Zyl said that the State had failed to prove any crime in regard to charge 30, possession of Mandrax, and, as put to Steven Beukes during cross-examination, the 100 000 tablets he made were not Mandrax at all, merely "lookalikes" to infiltrate the ANC smuggling routes. It was "highly unlikely" that Basson would have kept these tablets for seven years before offering them to Danie Phaal as a way to solve his financial problems, said Adv Van Zyl.

On the balance of probabilities, charges 25 to 30, and all alternatives, should be withdrawn.

Thursday March 22, 2001

The State was prepared to present its argument in rebuttal of the defence's argument for the dropping of charges but was unable to do so. Presentation of the State's case was delayed because the advocate's representing Basson claimed to have found a discrepancy in the documentation of the contents of the two trunks seized at the home of Sam Bosch shortly after Basson's arrest on January 29, 1997.

It appeared that a document crucial to the State case, namely the Sales List compiled by Dr Andr� Immelman showing the supply of certain toxins to Basson, security policemen Gert, Chris and Manie and Civil Cooperation Bureau medical co-ordinator Frans/Koos, was listed on the National Intelligence Agency's index, but not on that of the Office for Serious Economic Offences.

In order to clarify the position, the State would have to apply to the court to reopen its case and call the relevant witnesses. Unless the situation could be satisfactorily explained, the defence would have the opportunity to claim, as it has already done in respect of certain other documents, that the Sales List was not among the contents of the trunks while they were stored at Bosch's home, and could even suggest that it had been planted in order to frame Basson.

Friday March 23, 2001

On arrival in court Adv Cilliers said that he would not be pursuing the matter of the Sale's List because the State had provided a satisfactory argument to explain the apparent absence of the Sales List from the OSEO index.

The official explanation for the discrepancy is as follows: The Sales List was found in Trunk B, which contained all the Roodeplaat Research Laboratories documents and files. It bears an OSEO number showing this - but evidently, after being numbered but before being specifically catalogued, someone, probably Mike Kennedy of National Intelligence, removed the document from the trunk to take a closer look at it. He then appears to have placed the document in Trunk A by mistake prior to the trunks being moved to NIA, and their index, thus, shows the document as being in Trunk A.

It is, in fact, included in the OSEO index as well, but not specifically as the Sales List or by number, only as one of the documents in a file. The number of the file is accurately reflected in both indexes.

So the matter was been dismissed as an "administrative error".

Monday March 26, 2001

Proceedings began with Judge Willie Hartzenberg informing the court that in order to save costs, the State's response to the defence argument for withdrawal of the drug charges against Basson, will not be taped and transcribed. Written heads of argument are filed with the court, it is therefore not a legal prerequisite that verbal arguments be recorded verbatim. No such cost-saving measure was brought up when the defence presented its argument, which now is on the record.

Dr Torie Pretorius began by pointing out to the court that the legal criteria for dismissal of charges at this stage of a trial, are not the same as those taken into account in arriving at a final verdict. Credibility of witnesses, for example, is not a factor at this stage of proceedings, while all circumstantial evidence must be taken into account, not only that circumstantial evidence which can reasonably be interpreted as excluding all other possibilities.

Regarding charges 25 to 27, he pointed out that Basson was arrested during a police operation, that he handed a black refuse bag later found to contain Ecstasy capsules to Grant Wentzel and received R60 000 cash in return - Basson's share of the Rustenburg Ecstasy deal a few days earlier. These facts alone, Pretorius suggests, are sufficient to prove Basson guilty as charged, but said a wealth of circumstantial evidence supports the State case. He pointed to Basson's behaviour at Magnolia Dell, where he parked 30 minutes before his appointment with Wentzel and, as he is heard to say on the tape, observed the area to make sure it was secure, and he hooted to attract Wentzel's attention when he arrived. He referred to the "golden thread" woven through all the testimony, from that of Johan Koekemoer and Steven Beukes to Gen Niel Knobel, all of which points to Basson's omnipotent role in Project Coast and his access to the Ecstasy, and which illustrates the fragmentation of activities carried out in the project's name, with Basson alone being in possession of the full picture. He also referred to Basson's own testimony, during his first bail hearing, about the documents retrieved from the trunks at Sam Bosch's home, which will be dealt with later. The Judge asked Pretorius whether the bail hearing transcript was evidence before the court, it is.

Pretorius argued that whereas it could possibly be claimed that the original acquisition of drugs under the aegis of Project Coast might have been legal, this was not the case in the latter stages. In 1992, when Ecstasy was manufactured on large scale at Delta G Scientific, it was not yet an illegal substance - but from April 1993, it was listed under the Medicines Control Act.

Pretorius then ran through the chronology of events leading to Basson's arrest.

On being arrested, he said, Wentzel was visibly and deeply shocked and scared. He had been in no state to concoct an elaborate conspiracy implicating not only Basson, but also involving two attorneys in his alleged deception. There was no way Wentzel could have foreseen at the time that attorney-client privilege would be waived during the Basson trial, and that both Aubrey Chester and Bill van Vuuren would testify that he had named Basson to them.

The judge then asked: What if Wentzel had managed to get hold of some Delta G Scientific Ecstasy by some other means?

This was highly unlikely, said Pretorius, given the testimony about how carefully and secretly the deliveries were handled.

Asked by the judge why the police had not searched Wentzel's house after his arrest, Pretorius said obviously, they had believed Wentzel when he told them his supplier was a "bigger fish" from Pretoria. Pretorius said that Basson's advocates had performed an "acrobatic defence" in their bid to persuade the court Wentzel had delivered cases of wine to Basson on the Monday night before the Magnolia Dell operation. In fact, Wentzel had been released on bail earlier that day, having agreed to cooperate with the police, and from Rustenburg, went straight to the office of his attorney, Bill van Vuuren - and the last thing he was thinking about that afternoon and evening was delivering wine to Basson.

The Judge asked why Basson, if guilty, would have insisted after his arrest that the police check the capsules and bank sachets for fingerprints? Because he is an exceedingly cunning man, said Pretorius, who had successfully duped the superpowers for years in regard to Project Coast. If he knew, for example, that he had worn surgical gloves when packing the Ecstasy, he would also have known he had nothing to fear if fingerprints were taken. Nevertheless, says Pretorius, he believes the capsules and bank sachets were checked, and that no fingerprints were found.

The judge then said his perception, based firstly on the fact that Basson was visibly relieved to learn that the people pointing guns at him were from SANAB and secondly on his insistence that fingerprints be taken, was that "the State has no explanation" for such indications of innocence.

Pretorius said Basson's relief could be ascribed to the fact that at the time, as Mike Kennedy of National Intelligence had testified, he was living in fear of his life, following reported threats that he could be the target of a Mossad death squad. Obviously, SANAB detectives would be infinitely preferable to assassins.

Judge Hartzenberg asked, irrespective of what was in the capsules, if this was part of the chemical warfare project, then no matter what the substance was - Ecstasy, Mandrax, even cocaine - why would Basson have to explain what was being encapsulated? Pretorius said Gen Knobel had testified it was not the task of the project to encapsulate any substance. But asked Judge Hartzenberg, what if the capsules had to be fired during the pyrotechnical tests?

Turning to the suspicious behaviour of Basson at Magnolia Dell, Pretorius said there could have been no reason for his extraordinary caution if the meeting with Wentzel was as innocent as the defence claimed. Well, said Hartzenberg, unless of course the "change of political regime" had made it undesirable for Basson to be seen with Wentzel? Judge Hartzenberg pointed out that from 1990 onwards the attitude towards the project had begun to change, and of course, from 1994, a new government was in power. Someone formerly associated with Wentzel would probably not want to be seen with him post-1994, or seen to be his friend. Perhaps that was why Basson had taken the precaution of first checking out who might be around Magnolia Dell.

Pretorius said that Wentzel was Basson's friend, and business associate, long after the 1994 elections.

Judge Hartzenberg said the picture he had of the wine box discovery, was that whatever was in the black plastic bag, it must have had a form, a specific shape, so as to fit into the "egg box-like" wine carton. And since no decent, well-bred person would poke his nose into another man's parcel, it was entirely possible that Basson had handed over the parcel to Wentzel without ever looking into the bag.

Pretorius explained that the "parcel" was nothing more than a black refuse bag, and suggested that the judge was giving Wentzel far too much credit for an elaborate scheme to implicate Basson.

Tuesday March 27, 2001

Prosecutor Torie Pretorius continued presenting the State opposition to the application for withdrawal of the six drug-related charges against Basson.

To refresh Judge Willie Hartzenberg's memory, he recapped the testimony of Steven Beukes regarding the ampycillin capsules. He also went over the events leading to Basson's arrest in 1997.

Later, turning to charges 28 and 29 - possession of MDMA, methaqualone and cocaine found in the blue steel trunks - Pretorius said all the evidence presented, including that of Gen Niel Knobel, showed incontrovertibly that at all times, Basson was the pivotal figure in Project Coast, and the only person who ever had the full picture of the project.

From 1983, when he was tasked to carry out a feasibility study, the entire CBW project revolved around Basson - he was the only person who had liaison with both the SADF front companies and the Co-ordinating Management Committee, and the only person who dealt directly with everyone involved in the project, from suppliers to scientists. Only Basson had the knowledge and the contacts - and the mandate - to conduct/authorise transactions on behalf of Project Coast.

Pretorius argued for why the court should find that the trunks belonged to Basson and why he should be regarded as responsible for their contents. The Judge appeared not to accept Pretorius argument in this regard.

Addressing charge 30 - trafficking in Mandrax - Pretorius recapped on the testimony of Steven Beukes.

The Judge summarized asking it is was the state's case that the accused had Beukes make 100 000 Mandrax tablets in 1985, then kept them safe until Phaal ran into financial difficulty in 1992 - and offered the exact same quantity to Phaal? Did the State contend that these were one and the same tablets, and that in other words, when Basson had Beukes make the tablets in 1985, it was the intention all along to keep them for better days, and there was no other possible reason for the exercise?

Pretorius said it was not for him to speculate on what, if any, reason Special Forces might have had for manufacturing Mandrax in 1985. The tablets offered to Phaal may or may not have been the same 100 000 made by Beukes - but at the very least, by making the offer to Phaal, Basson is guilty of attempted/inciting drug trafficking.

Thursday March 29, 2001

Responding to the State's argument against acquittal on charges 25 to 30, advocate Tokkie van Zyl stipulated six points which the State had been unable to explain in claiming that Basson had supplied Grant Wentzel with Ecstasy capsules, as per charges 25, 26 and 27.

• Grant Wentzel had made inquiries - of Gert Lourens and Jerry Brandt - before the end of 1996 already about the availability of Ecstasy.
• Shortly after this, Wentzel had also asked Brandt how and where he might obtain empty capsule shells, claiming one of his friends, a homeopath, needed them. The judge commented that these two points appeared to indicate before the end of 1996, Wentzel was not yet a member of an Ecstasy syndicate.
• The statement made by Sanab officer Willem de Villiers made it clear that as early as January 13, information from Steve Martin was that he was aware of large-scale trade in Ecstasy capsules. Even if the court accepted the explanation that there had probably been no mention of either pills or capsules by the informer, merely of Ecstasy, the date attached to the information by De Villiers indicated clearly that Wentzel was engaged in trading Ecstasy before he first approached Basson, on his own evidence.
• The telephone call to Wentzel "from my supplier", as recorded in the postscript to police reservist Fred Scherf's statement could not have been made by Basson, as there was no record of such a call in his cell phone records for the date concerned.
• On his own evidence, Wentzel assured Martin that he had a source for Ecstasy before he first approached Basson in this regard. Wentzel must already have had an alternative source, and by January 13, have been involved in Ecstasy trafficking on such a scale that the SANAB members anticipated a major drug bust.
• The tape of the conversation between Wentzel and Basson at Magnolia Dell contained no reference to drugs, Ecstasy or capsules.

Regarding charges 28 and 29, the court had evidence that two of the four steel trunks stored by Sam Bosch had been packed by Andre Immelman - and no indication of who had packed the other two. No witness had testified which specific trunk the chemicals in vials had been found in, nor did the inventories of the trunks list the vials.

The judge said his impression had been that the chemicals were found in one of the first two trunks, retrieved at Bosch's home.

Indeed, said Adv Van Zyl - but which trunk? Philip Mijburgh had been in charge of transferring the Project Coast data to CD-ROM, and he had also been in charge of Delta G. The Judge said his impression was that the chemicals had probably emanated from Basson's home.

No, said Adv Van Zyl - all Basson was referring to during the bail hearing was the documents taken from his home in 1992/91, at his wife's request. No, said the judge, he referred specifically to the removal of items from his home while he was in Libya - and he had not been in Libya in 1992.

But, said Van Zyl, Basson had made no admissions about either documents or chemicals having been in his possession. He had, in fact, said he was not aware of trunks of documents being stored anywhere, admitting only that documents had been taken from his house by other people in the early 1990s. However, it was agreed by all parties in court that no documents in trunks had been removed from his house in 1992/1993. Basson did not know idea if the vials containing drugs were removed from his home along with documents, as he was not there at the time, and he knows nothing about trunks taken to Bosch in 1995 by Mijburgh.

Indeed, said Van Zyl, Basson's testimony at the bail hearing clearly showed his total innocence in regard to the drugs in the trunks. Far from supporting the State case on charges 28 and 29, his testimony actually harmed it, as it was abundantly clear that Basson had no idea the trunks contained any vials of chemicals.

As for charge 30, there was no way Basson could be found guilty of possessing Mandrax, since he was not in possession of the Mandrax stipulated in the charge. The State case was that the 100 000 Mandrax tablets - the "lookalikes" - made in 1985 by Beukes, were the same 100 000 pills offered to Danie Phaal for sale at Jeffreys Bay in 1992. But there was no tablet or forensic report to prove this, and in the absence of physical evidence, Basson had to be acquitted. It was ludicrous to suggest that he could be found guilty of attempted/inciting drug dealing, since without physical proof that he had or had access to Mandrax, the alleged offer to Phaal was meaningless. Since the circumstantial evidence was not consistent with the facts, the court would have to find that Basson was not Wentzel's supplier.

The judge asked how the removal of documents from Basson's home in 1992, as put by the defence, compared with the time frame of the seizure at a UK port of a drum of Ecstasy, and the investigation by Basson into the possibility that the substance had originated from the project.

The two events took place at approximately the same time, says Van Zyl.

In light of the evidence, or lack of it, the court had no choice but to acquit Basson on charges 25 to 30, Van Zyl concluded.

The judge placed on record that he will not give any decisions on acquittal until he has heard the arguments in all three sub-divisions of the case.

Torie Pretorius indicated that he would have certain additional points to make in response to the defence argument at a later stage.

Court adjourned until Wednesday, April 4, when Jaap Cilliers will start arguing for Basson's acquittal on the human rights violation charges - 31 to 63.

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]