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Trial Report: Forty-Five

This report covers the period April 23 - May 7, 2001

The court is currently hearing argument for and against the dropping of charges against Dr Basson. The court is not sitting on a daily basis but convenes to hear argument from the prosecutors and defence team as and when their arguments have been prepared. Dr Pretorius, prosecutor on the human rights violation and drug-related charges, will present his argument in response to the defence team's request for the dismissal of these charges on Monday May 14. It was agreed that the defence team could present its argument pertaining to the dismissal of two of the fraud charges (charges 23 and 24 relating to the privatization of Delta G Scientific and Roodeplaat Research Laboratories) on May 2 and 3.

Tuesday May 2 and 3, 2001

Defence advocate, Jaap Cilliers told the court that it would have to reject all the evidence of Florida attorney David Webster in order to convict Basson on charges 23 and 24, since the State case relied entirely on the contents of documents retrieved from his files. The defence contends that these documents were deliberately designed to disguise the true nature of transactions in which Webster was involved, and therefore do not reflect what the State wishes them to, namely that at all times, Basson was the beneficial owner of the WPW Group. Cilliers argued that the state's case which relied on demonstrating Basson's interest in the company Medchem Consolidated Investments was flawed. He also said there was no evidence to suggest that the process of privatisation had been irregular and that the state had failed to prove a case of fraud on the charges in question.

In his response, state advocate, Anton Ackermann said that the state did not intend to show that the process of privatisation was irregular, rather that Basson had failed to disclose that he would personally benefit from the privatisation of the companies.=20

Ackermann's argument took the best part of May 2 and 3 with Judge Hartzenberg interjecting with incisive questions throughout.=20 His argument began with a summary of the facts:=20

Project Coast was financed by the state which paid more than R400-m between 1982 to 1993.
The accused was de facto in charge of the project, and the sole individual who:

  1. identified the products, equipment, services and technology needed, as well as how all of these were utilised by the project=20
  2. identified the suppliers of these products and services;=20
  3. entered into contracts with the suppliers;=20
  4. drew up budgets and presented them to the Co-ordinating Management Committee for approval;=20
  5. monitored delivery both by suppliers and the project. The state's case is that from the beginning of 1987, a "drastic" change took place in respect of the financial management of the project's front companies. Up to January 1987, the project management of Coast was directly involved in the front companies. At that point, however, this practice ceased and only indirect control, through consultation with the managing directors of the respective companies, was exercised - by the accused.

    Ackermann said that simultaneously, funding of the front companies underwent a dramatic change. Prior to 1987, all financing was provided by the SADF with no consideration for profit or loss. From this date onwards, however, it was envisaged that the front companies would generate their own income - entering into contracts with the SADF, which would place huge amounts of money in the front company coffers.

    Due to the unprecedented authority which the accused had as project officer, it is the State's contention that he saw an opportunity to enrich himself. In order to do so Basson had to acquire a commercial interest in the companies which would act as SADF contractors. Ackermann said this interest had to be acquired in clandestine fashion, and remain hidden. He said that in order for the plan to succeed, the structure for Basson's personal empire had to be in place by the beginning of 1987. He said the accused was fully aware that financial control of state funds involved in the procurement process was fraught with problems, due to the extreme sensitivity and secrecy of the project, and that the financial controllers relied almost entirely on his bona fides as project officer. In October 1986, Webster facilitated registration, in the Cayman Islands, of WPW Investments Inc, Medchem Inc and PCM International Inc. The state claims that Basson was the 100% shareholder of all three companies, with Webster acting as his nominee.

    As far as Basson benefiting financially from the privatisation of the front companies was concerned, Ackermann said the indictment made it clear that the only factor to be considered by the court at this stage of proceedings was: Is there a prima facie case for the accused to answer? His failure to disclose his personal interests, as set out in the indictment, made it clear, said Ackermann, that there was such a case. Evidence led by the State had shown, at the very least, that this non-disclosure could have led to Basson benefitting financially, and that if his personal interests had been disclosed at the time, this could have had an influence on the decisions made during the privatisation process.

    As it was, said Ackermann, the State had proved beyond reasonable doubt that Basson had acquired a commercial interest in Delta G Scientific. This had been done through direct evidence, numerous documents, including several in Basson's own handwriting, and a "massive" body of circumstantial evidence, including details of the accused's modus operandus. The loans made to companies in the Wisdom Group formed part of the circumstantial evidence.

    During his argument, and in response to the Judge's questions, Ackermann said that the relationship between Wynand Swanepoel, Philip Mijburgh and Wouter Basson was close and that the luxurious lifestyle enjoyed by the accused, Mijburgh and Swanepoel, was indicative of their shared "commercial success". In response the Judge drew attention to the claim that Basson had to act under the cover of being a wealthy international businessman and therefore would have had a lifestyle to match, he referred to the cottage owned by WPW in Warfield, England where Project Coast operators are alleged to have been accommodated. In his response Ackermann rejected the claim that this cottage was used as a "safe house" saying that the cottage may, on the odd occasion, have been used by Project Coast operators or collaborators, but this did not detract from the actual ownership. Ackermann also said that the Project Manager, Gen Knobel, had not known of the cottage.

    In a brief response, Cilliers submitted that Exhibit A3 (Background to Activities of the WPW Group), which the state had referred to, was inadmissible since it was "hearsay" evidence. Zimmer had testified that he received a copy of the document from Webster. Webster testified that he could not remember the origin of the document, but that he "must have" received it from "someone" in South Africa. The State appeared to believe that Mijburgh was the author, but had chosen not to call him as a witness. As a result, no one had identified the author of the document, and it could thus not be seen as anything other than hearsay. The Judge accepted this point. As for the "direct" evidence of various other documents used by the State these, said Cilliers, were all false and designed specifically to support Basson's cover stories for Project Coast. The documents dealing with the proposed 1988 takeover of Delta G Scientific by the WPW Group were nothing more than part of the fa=E7ade to present Delta G as a viable commercial venture.

    Cilliers closed his argument. At this point Judge Willie Hartzenberg told Cilliers that he wanted to be done with this case "some day", and said he did not believe it would be productive for Cilliers to present any further argument for acquittal. He suggested Cilliers abandon plans to do so - although he could not stop Cilliers from continuing. Cilliers responded by informing the judge that he wanted to argue for acquittal on charges 6 to 10 (which relate to payment of funds to Roger Buffham's company, Contemporary Systems Design, and Wilfred Mole's company, RF Telecommunications) as there was no evidence before court pointing to any guilt. This is the result of the judge's ruling that the court would not travel to England to hear Buffham's evidence.

    The judge said he had a problem with the piecemeal fashion of the litigation since it was quite clear that neither legal team was "objective" any longer. He also commented that Cilliers should bear in mind that the accused had held a "unique" position of trust, and suggested that Cilliers should confine any further argument for acquittal to charges 6 to 10.

    Cilliers said he would also wish to seek acquittal on charge 1 (supply of laboratory equipment by Buffham) and charges 15 (payment of funds to Medchem Forschungs, allegedly used as part payment for the Jetstar), 17 (alleged payment for chemicals supplied by Medchem Forschungs) and 19 (one of the charges relating to the divisible bond created for alleged payment of chemicals from Croatia).

    The judge placed on record that one of the problems he had was that the legal strategies of both teams were being revealed to unnecessarily and prematurely.

    No date has yet been set for Cilliers to argue further - this will only happen once Pretorius has replied on the human rights charges.

     

    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]

 
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