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Trial Report: Forty-Six

This report covers the period Monday May 21 - Friday May 25, 2001

Proceedings resumed for the first time since Monday May 7 with State prosecutor, Torie Pretorius, launching his response to the defence argument for acquittal on all the human rights violation charges.

He prefaced his argument with a caveat to Judge Willie Hartzenberg. While it was clearly incumbent on the judge to evaluate the testimony of accomplice witnesses with caution, he should not, at this stage of proceedings, attach too much weight to the relationship between the quality of the testimony and the calibre of the witnesses. The passage of time and human error could account for what appeared to be glaring discrepancies in the evidence of witnesses to the same event, but this did not necessarily constitute perjury, as claimed by the defence. The Judge indicated that the inconsistencies in the accounts of witnesses was the central weakness of the state's case in that it made it difficult to link the accused to the acts.

Justice Willie Hartzenberg pointed out that it was vital for the state's case that the court find that a meeting had taken place between Gen Fritz loots, head of Special Forces and Basson in order for him to be implicated in the broad conspiracy alleged by the prosecution. According to the state it was at this meeting that it was decided that Basson would supply the operators with substances used to murder Swapo members and others. Loots was not called as a witness and the witnesses who testified had different versions of events. Pretorius drew attention to the fact that the alleged meeting had taken place some 20 years ago which would account for the differences in testimony.

Prosecutor, Dr Torie Pretorius, presented reasons why the Judge should believe the testimony of the State's witnesses in regard to the incidents with which Basson has been charged. He focussed on the testimony which directly implicated Basson in the attempted murders of Victor de Fonseca and Peter Kalangula. He drew attention to the testimony of witnesses who had said that it was "general knowledge" among CCB/Special Forces operators that toxins were supplied by the accused or on his authority.

Pretorius said none of the key witnesses had ulterior motive for implicating Basson. Basson's defence advocate argued that they wished to avoid prosecution for their own crimes, but since all the key witnesses could face life imprisonment if not granted immunity, the potential price for falsely implicating the accused was extremely high. He said there was no truth to the defence claim that witnesses were told they would have to implicate Basson if they wanted any chance of being granted immunity, some witnesses had incriminated themselves without implicating the accused at all.

The court did not sit on Tuesday May 22.

Wednesday May 23, 2001

Prosecutor Torie Pretorius began by clarifying two issues raised on Monday. He said that according to the evidence before court, operator Johan Theron held an initial meeting with General Fritz Loots, commanding officer Special Forces, at which the decision was taken to eliminate "surplus" Swapo prisoners-of-war in what subsequently became known as Operation Dual.

Basson was not involved in this meeting, or in what appear to have been several more, according to the testimony of both Theron and Mr K. At some point, as the pilot, Mr K would have attended a meeting with Loots, and initially, Theron would have reported back directly to Loots.

The first flight, on which Theron used chemicals obtained from EMLC, took place in July 1979, the next some 13 months later. It was only after the problems with the EMLC chemicals that Theron took up the matter with Loots and that Basson was drawn into the conspiracy and began to supply Scoline and Tubarine. Pretorius contended that confusion between Mr K and Theron about who attended which meetings and when Mr K was informed by Theron that Basson was supplying the chemicals, can be explained by a lapse of time and memory, and does not, in itself, present the court with a problematic discrepancy of fact.

The State's case is that from the time he was instructed by Loots to supply Theron with lethal cocktails, the accused played a leading role in the ongoing conspiracy, and that at all times, he either personally supplied the substances, or authorized their supply.

It was not in dispute that the accused himself had supplied sedatives to Theron - the defence had conceded that these scheduled medicines were for the use of Special Forces operators. The accused should have foreseen the possibility of an overdose being administered by operators, who were not, after all, trained medical professionals. In order to find that the accused was guilty of common purpose in this regard, it was not necessary for him to have known exactly where and when such substances would be used, nor even to be present himself. Merely by supplying them to untrained personnel, he was culpable.

Pretorius said the most important evidence to be considered in dealing with the Civil Cooperation Bureau era was that of Mr R, Mr T, Andre Immelman and Daan Goosen regarding the link between the CCB and Roodeplaat Research Laboratories, and that of Phaal and Trevor Floyd in regard to the way the CCB operated.

He then turned to the Sales List, urging the court to ask for what purpose, other than elimination, would lethal toxins have been mixed with alcohol, chocolates and cigarettes. The only possible use for such products would be for supply to hit squad operators. The defence had claimed that products handed to Basson by Immelman had been needed for further research.

The State had a bigger problem than that, said the judge. How had the policemen, Chris, Gert and Manie been able to apply paraoxon to Chikane's clothing? Where was the evidence that they had done so? And what had the State to say about the fact that the pills Immelman was required to doctor in order to poison Dullah Omar, were white, while the cardiac medication he was taking at the time, was pink? Why had Immelman provided the CCB operators with a white powder in the end? Why could pills not have been made by Steven Beukes, using the tablet press he had at Speskop? Pretorius responded that the need-to-know principle was such that not all those involved necessarily knew the tablet press existed.But the accused certainly knew, said the judge - why could he not simply have ordered Beukes to make the pills? In light of the evidence, it was "highly improbable", said the judge, that the accused had any direct involvement at all in the substance provided to poison Omar, the poison beer used to murder Knox Dhlamini or the cholera supplied to Pieter Botes for pollution of the Swapo refugee camp water supply.

But, said Pretorius, the accused's agents or representatives - in the form of Immelman and the CCB medical co-ordinators - were involved, and were acting on his instructions in supplying these substances.

Pretorius argued that the cumulative effect of the substances delivered according to the Sales List, coupled with the dates and details of incidents outlined by various CCB operators who were involved in plans to eliminate enemies of the state, could not simply be dismissed as coincidence. Nor could the court dismiss testimony about Basson saying that he could "rewrite the toxicology textbooks" or the damning terminology in reports on RRL's research projects. References to how the presence of paraoxon could go undetected, recommended dosage of certain substances and non-traceability of others, were among the irrefutable pointers to the fact that RRL was engaged in research for offensive use, not for protection of VIPs.

Was the State suggesting, asked the judge, that the entire RRL facility was set up by the accused for the sole and specific purpose of producing toxins for murder?

No, said Pretorius - the State had never suggested anything of the sort. What it does claim, however, is that by its very nature, the facility offered the opportunity for exploitation and abuse.

Hartzenberg suggested that the State should have called an international expert to explain the nature of the substances dealt with in the research reports. He asked whether, in the absence of independent testimony that specific substances could never form part of legitimate CBW research, the court was at risk of misinterpreting the results of tests conducted. The prosecution's response was to remind the judge that the case against Basson is not about legitimate CBW research, but about the abuse of the programme and its hijacking for criminal ends.

In other words, observed the judge, the State case rests on the premise that the abuse must either have been directed by the accused, or that he must at least have been aware of it. Pretorius agreed.

But this did not explain certain anomalies, said the judge. Why, for instance, had it been necessary for Phaal to travel all the way to Ovamboland to administer "jungle juice" containing an anti-coagulant to a detainee, then transport the bleeding and desperately ill man back to Pretoria in an aircraft? Why could the man not simply have been sedated with Vesperax and flown to Pretoria in a healthy condition for the experiment to be conducted? The prosecution was unable to provide the judge with any answers.

Thursday May 24, 2001

Prosecutor Torie Pretorius continued to argue that Basson should not be acquitted on any of the human rights violation charges at this stage, as only he can provide the court with answers to a number of outstanding questions. His argument focussed on the incidents which the state believes led to the attempted murder of Rev. Frank Chikane and the attempted intimidation of Archbishop Desmond Tutu.

Pretorius acknowledged that one of the police officers called to testify about the alleged contamination of Rev. Chikane's clothing at the Johannesburg airport had damaged the state's case but argued that there was sufficient circumstantial evidence to link Basson to the incident. In summary, the judge observed, the State had attempted to prove that paraoxon was applied to items of Chikane's clothing at the airport, but had not been able to present any direct or eyewitness testimony.

Friday 25 May, 2001

The final day of argument against acquittal on the human rights charges saw prosecutor Torie Pretorius focussing attention on Charge 63, the umbrella conspiracy charge.

Pretorius cited legal authority which holds that in the case of a conspiracy, a single member is liable for the actions of all fellow members, since all the conspirators support execution of the "grand objective". He argued that at all times the accused had acted with common purpose in supplying/facilitating the supply of lethal toxins to special units which had as their objective the elimination (murder) of enemies of the state. Since proof of conspiracy is "generally a matter of inference" a defendant's guilt does not hinge on whether or not he originally designed the conspiracy, or at what stage he joined it.

The Judge observed that in that case (Danie) Phaal, (Trevor) Floyd, even (Andre) Immelman are all co-conspirators with (Johan) Theron. He said that if that were so, the Section 204 warnings issued to them might not have gone far enough to ensure their escaping future prosecution. All the State witnesses who admitted to associating themselves with the elimination of enemies, were thus equally guilty of conspiracy. The Judge remarked that Pretorius might well have led them astray by limiting the 204 warnings to the charges in which they were directly involved. Pretorius argued that in certain cases, State witnesses would, indeed, be guilty, but not in others.

The Judge said that if the court found that a "grand objective" had existed, namely elimination of enemies of the state, it followed that anyone who joined the conspiracy was equally guilty. He asked Pretorius if he wanted the court to believe that there were different levels of conspiracy. He gave the example that by supplying toxins which he knew were being used to eliminate enemies of the state, Immelman, was clearly liable for the death of every single person eliminated by means of toxins - but asked whether it could be that was he also liable for the elimination of persons by all other means than toxins.

Pretorius said that if Immelman had associated himself with the grand objective of the conspiracy then he was, indeed, culpable. However, the court should bear in mind the testimony of Daan Goosen, namely that the scientists had not been told, nor had they wanted to know, details of who the targets were, nor where or when they would be hit. Immelman may well have been an innocent cog in the wheel, an unconscious member of the grand conspiracy.

The judge observed that both charge 60 and charge 63 dealt with conspiracy, but that when it came to charges of murder, the court could not say that the accused was guilty of conspiracy and therefore also of murder. Common purpose, he said, implied that someone associated himself with a specific act, and the legal parameters were thus somewhat narrower than those of conspiracy.

Pretorius differed, saying there was actually very little difference between common purpose and conspiracy in legal terms. Common purpose, however, is generally used when murder is involved, rather than ideological agreement. The judge replied that the court would have a problem convicting the accused of murder on the grounds of common purpose.

Pretorius said that what the court would have to take into account were opportunity, means and motive or ability. From the moment that agents became aware that the products they had handled might have been used to commit murder, and decided to continue their association, they became guilty of conspiracy.

Pretorius then turned to the question of the poisoned beer to be distributed at Eastern Cape taxi ranks. Judge Hartzenberg asked what was actually intended with this plan? How could 12 quarts of poisoned beer possibly have been used to "solve the taxi problems" in the Eastern Cape? Hartzenberg remarked that the plan to place bottles of poisoned beer at Eastern Cape taxi ranks made absolutely no sense at all, and appeared to be the brainchild of "someone with extremely limited brainpower".

Pretorius said he was not in a position to say what, exactly, had been in the mind of Johan Theron - but the court should ask why, having already incriminated himself in far more serious criminal acts, Theron would have made up such a story. Furthermore, the testimony of both Phaal and Rita Engelbrecht supported Theron's account. Quite possibly, the political changes which "pulled the mat out from under the military securocrats" from 1992 onwards might have played a role in what appeared to be an unlikely scenario.

Hartzenberg then addressed the question of witness selection. He said it was quite clear that certain witnesses had not been called by the State, despite the fact that they were available, and the only apparent reason for this omission was that the witnesses concerned did not support the State case. Nevertheless, the court was now being asked not to infer that they would necessarily have advanced the defence version of events. It was his impression, said the judge, that it was "more than mere coincidence" that certain witnesses were not called, and that the State had a specific reason for maintaining their silence. This meant that the State had, in effect, held its own pre-trial and decided what testimony was relevant to its specific scenario, and what was not. The result was that the court had, in effect, been presented with censored testimony rather than with all the relevant testimony, as the law required. Investigator Mike Holmes had admitted as much when he testified that statements had not been taken from certain individuals "because we knew the truth and we knew who was lying".

Pretorius said it was not true that the State had censored the testimony presented. The facts were that very few witnesses had been willing to testify at all, and the State had encountered numerous problems in regard to some of them - potential witnesses had deliberately avoided contact with the State, some going to enormous lengths to simply "disappear".

Hartzenberg said this situation left him no option but to rely on the prosecution's judgment as to who was telling the truth, and who not, rather than being placed in a position to arrive at such conclusions himself, based on his own evaluation of all the available evidence.

Pretorius pointed out that the judge has the discretion to call any witness he wishes to hear from. The problem, said the judge, was whether or not it would be fair, when dealing with conspiracy charges, for the court to do so. Both the prosecution and the defence would then have to be given the opportunity to cross-examine such witnesses.

Pretorius said that there were very few witnesses who were prepared to testify against Basson. He said the case against the accused had been fraught with undercurrents and residual sympathy towards Basson, and the State had to be on its guard at all times against the possibility of its case being eroded from within. The State had, after all, gone up against the CCB, a well organised, highly sophisticated covert group which was especially adept at cover-ups.

Hartzenberg asked if could he accept that a fair verdict was possible based on the (selective) evidence before the court. The State, after all, had enormous resources at its disposal, the full machinery of the criminal justice system, and ought surely have been able to overcome any difficulties. The defence, after all, did not have access to the same resources. In this case, said Pretorius, which involved the security forces of old, that was not necessarily true. But, the said judge, there was no onus on the defence, and the assumption of the court was that if a witness was called to testify, the court would hear the truth.

Pretorius said that such an assumption could be made in an "ordinary" criminal case, but this was not an ordinary case in any sense. It centred on a conspiracy on a scale equal only to that of major organised crime, except that the Basson case pitted an "old" political ideology against a "new" one.

So must he then accept, asked the judge, that because of an extraordinary set of circumstances, normal High Court procedures had to be suspended because the prosecution reserved the right to call only those witnesses who could make a positive contribution to its case? Must he accept that normal probative rules were not applicable to this case, and that in numerous instances, he was to attach more weight to circumstantial evidence than to direct testimony? How was the court supposed to deal with such a situation?

Pretorius undertook to search for legal authority/precedents which the judge could use as guidelines.

Pretorius then attempted to return to Charge 63, which covers the entire spectrum of the conspiracy to eliminate enemies of the state, starting with the first meeting in the office of General Fritz Loots and ending with the plan to distribute poisoned beer at Eastern Cape taxi ranks. What the court had to ask was: Did a conspiracy exist to eliminate enemies of the state? A dozen or more CCB agents had testified that it did, and that poison was one of the methods used for this purpose. What the court had to ask was: (a) Did the individual deeds spelled out in the indictment take place and (b) was the accused part of the conspiracy that gave rise to these deeds.

The judge asked Pretorius to explain what the court's position would be in respect of a partial finding. If, for example, he could not find conclusive proof of guilt relating to Barnacle and the meeting with Loots, did this leave him room to find guilt in relation to the later deeds? Pretorius said it was the State view that at this juncture, sufficient evidence had been presented to force the accused to tell the court what had happened to all the substances and toxins provided by doctors under his command or Roodeplaat Research Laboratories. Links between the accused and the CCB had been illustrated by testimony. The State contends that the accused was an active member of the broad conspiracy, and should have foreseen that eliminations would be extended to internal operations, particularly after members of the Security Police were drawn into the conspiracy.

Pretorius said that in considering the evidence, the judge should bear in mind that single witness testimony could be relied upon, particularly if given by an accomplice found by the court to have been a credible witness.

Turning to another charge, Hartzenberg said it was inherently improbable that Danie Phaal would have travelled all the way to Namibia to give a victim "jungle juice" laced with an unidentified substance. He asked why the target would not have been flown to South Africa for the experiment to be conducted, if it was an experiment. Pretorius answered that there would have been no legitimate reason to transport a healthy Swapo prisoner of war to Pretoria - but once the substance had induced a medical condition that could not be treated in Namibia, there would be a legitimate excuse for moving the man to Pretoria.

Regarding the burning of an unidentified man's body in the furnace at Speskop, Pretorius said the court should ask: Why would Theron incriminate himself in this deed if it was not true? Since the only other person who could shed light on the matter was the accused, it was incumbent on him to enlighten the court. The Judge responded that the victim was unidentified and there was no evidence that if the incident occurred, it was designed to hide anything sinister.

All the circumstances surrounding the incident were suspicious, said Pretorius. Theron had testified that the body was to be burned after normal office hours, when no one was around. The ambulance had been driven by the accused himself, and Theron had to break the arms of the victim in order to fit the body into the furnace. Not a single procedure governing the disposal of bodies of patients who died in a hospital, including a military one, had been followed. If the incident had been innocent, or related to some medical security issue, why had the defence not simply said so, and produced evidence to this effect, asked Pretorius.

On the charges relating to the fate of the Orlando Cristina assassins, the Judge said his problem was that all the witnesses called had disclaimed knowledge of the document recommending their elimination, which the State claimed had been drawn up by the accused. Furthermore, it was clear from the evidence of, for example, Cor van Niekerk, that the document would have had no influence at all on the SADF decision to hand the killers over to Renamo, or on Renamo's decision that they should be executed. How, thus, could the accused be guilty of incitement to murder?

The document was dated 1988, said Pretorius - a time when the accused was still young and inexperienced, and clearly eager to make his mark in the ranks of Special Forces. More importantly, it had been retrieved from one of the trunks containing personal documents belonging to the accused, and no matter if the trunks had been moved to the home of Sam Bosch from that of the accused, or from an office he might still have occupied in December 1995 - the last date of a document in the trunks - there was no doubt that the contents of the trunks emanated from the accused.

Was Pretorius sure of this, asked the judge. Why, for example, could Mijburgh not have placed the drug samples in the trunks? Why could the documents not have been in someone else's possession?

Regarding charge of assault with intent to do grievous bodily harm, relating to the chemical interrogation of the Cristina killers, Pretorius reminded the Judge that he had heard the evidence of both Theron and Rifleman Paul Heyns about a manacled patient who was handed into their custody by the accused at 1 Military Hospital before he was flown to Bloemfontein. There was also Theron's testimony that he had been told by the accused that the man had suffered an overdose during chemical interrogation.

As far as the accused's failure to store classified military documents in a proper fashion are concerned, Pretorius pointed out that the scanning process had been completed at the end of 1994, which meant the accused had a full year in which to ensure that the documents were destroyed as he had been ordered to do. He had failed to do so.

But what, asked the judge, if it was in fact Mijburgh who had neglected to destroy the documents? General Niel Knobel had testified that it was the responsibility of the accused to ensure that the documents were destroyed, said Pretorius, and he had assured his successor, Ben Steyn, that this had been done.

The State opposes acquittal of Basson on any of the charges at this point.

Defence counsel Jaap Cilliers told the court that he was ready to reply immediately to the State argument, but in light of the strategy that had emerged, namely placing only selected facts before the court then asking that the judge make deductions, he would prefer to prepare a considered response setting out the factual situation and discrepancies glossed over by the State.

Cilliers thus suggested that he deliver his response on Tuesday, May 29. He also indicated that he did not want to open the defence case before the start of the mid-year recess (Friday June 22) and would prefer, if needs be, to return to court one week before the end of the recess.

The judge said he would prefer not to do so, but at the same time, he does want to "finish this case in the year 2001". Cilliers indicated that he would endeavor to have the accused start testifying at the end of July.

 

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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