Trial Report: Forty-Four

This report covers Friday, 6 April 2001

Adv Jaap Cilliers continued to argue for the dismissal of charges against his client by drawing attention to shortcomings in the State's case.

With regard to the charge of attempted murder of Rev Frank Chikane, Cilliers argued that there were discrepancies between the testimonies of witnesses. Cilliers said there was no evidence before the court linking Basson to the poisoning of Rev Chikane.

Cilliers argued that the charge of intimidation against Basson for the baboon foetus which had been hung in the garden of Archbishop Tutu had also not been proved. He said that there were discrepancies as to whether the foetus had been that of a baboon or an ape and said that there was insufficient evidence to link Basson to the supply of that particular foetus.

On charge 63 – conspiracy to eliminate enemies of the State – Cilliers said that circumstantial evidence had been presented but said the State had failed to prove conclusively that Basson had been part of a conspiracy to kill people. Cilliers said he realised that this was a highly emotive and sensitive matter, given the political dispensation, but the fact was, the "mere" killing of ANC, MK and SWAPO members during the period in question was not illegal in itself. If this was so, he said "the entire SADF" would be guilty. Cilliers said the only testimony of conspiracy was that of Johan Theron which Cilliers said could not be relied on. Cilliers said that Theron had made it clear that Basson had only been told that "surplus" SWAPO prisoners of war in Namibia were to be eliminated. That, said Cilliers, was the only direct evidence of any conspiracy – but it applied only to external or foreign operations.

With regard to the toxic substances manufactured by Roodeplaat Research Laboratories, Cilliers said there was nothing sinister about them. He said they had clearly been part of the programme to protect own forces and VIPs against possible biological attack, and had been entirely defensive in nature. He said it was not in dispute that "offensive" and "defensive" weapons were but two sides of the same coin. The Judge asked why Jan Lourens then made the special applicators.

Cilliers promised he would address this in due course – but he did not. He chose instead to address the testimony, via written reports, of Dr James Davies, that the poison-tipped umbrella, walking stick and screwdrivers had been tested to determine the effect of "possible use against our own people". Cilliers said that while one might speculate that "our own people" could also have used such applicators, the court had to consider the evidence of Davies that the applicators were not intended for offensive use, and were not intended for use inside South Africa.

Cilliers said that even if they were designed for use inside South Africa the mere manufacture of such applicators was not a crime, though the ultimate use of them could be. The fact was, he said, there was no difference between a soldier using a knife to slit an opponent’s throat, or using a poison umbrella or screwdriver to dispose of him.

There was no direct evidence linking Basson to the broad conspiracy, said Cilliers, and, sensitive though this was, the court must see all acts carried out by the SADF during the period in question against the background that it was engaged in a total war at the time. Cilliers said this is an emotional matter into which the court should not delve too deeply.

On charge 64 – illegal possession of classified documents – Cilliers said the facts were that Immelman had purchased and packed two blue steel trunks with RRL documents, and that these trunks were removed from the premises by the accused and Mijburgh "some time between 1993 and 1997". Cilliers said that the accused was "under arrest in Libya" when certain documents were removed from his home, without his knowledge. The Judge asked when the accused had been arrested. Cilliers said there were several arrests – but suffice to say that in December 1993 he was arrested in Switzerland, and in 1995, he was arrested in Libya.

Cilliers said that the questions that had not been answered were: What did Mijburgh do with the steel trunks after Data Image had captured the CBW data on CD-Rom? What was the origin of the documents in the trunks? Who had packed them? The only person who had the answers to these questions, was Mijburgh – but the State had chosen not to call him. The State had not proved that the accused knew the trunks were at Bosch’s home, let alone what was in them, said Cilliers.

In conclusion, he argued that there was no case for Basson to answer in respect of any of the charges from 32 to 64. He said that given the enormous publicity surrounding the case and the high profile of certain witnesses, the defence was at a loss to understand why the State did not simply concede this fact in respect of certain charges, like that of Chikane’s poisoning. According to Cilliers, this was a definite indication that the State had adopted a different approach to this case than to any other.

Prosecutor Torie Pretorius informed the judge that he would need time to prepare a comprehensive response to the argument, and will indicate on April 23 when he will be ready to present his argument.

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]