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Trial Report: Forty-Seven

This report covers the period Tuesday May 29 - Friday June 8, 2001

Adv. Jaap Cilliers responded to the State's argument against the defence application for the acquittal of Dr Basson on the human rights violations charges against him. Cilliers began by attacking the State's argument that the elimination of enemies of the state could be divided into two periods: the early period of Operation Barnacle during which an overdose of muscle relaxants were used in lethal combination to dispose of "surplus" SWAPO prisoners of war, and a later period marked by the end of Operation Barnacle and the initiation of the Civil Cooperation Bureau. During this second phase poisons produced by Roodeplaat Research Laboratories were used as assassination weapons. The State had used the case of Victor de Fonseca and the introduction of Dr Andre Immelman as purveyor of toxins as the link between the two periods.

Cilliers argued that in order to sustain the State's argument, the court would have to find that Basson had been instructed by General Fritz Loots to supply operator Johan Theron with substances that would allow a "more humane" way of killing SWAPO detainees. Unless the court could find that this meeting had taken place, the State would be unable to prove its case since, if Basson was not implicated in the Barnacle operations, there would be nothing to link him to the later CCB operations.

Cilliers said the State had failed to present credible testimony about the meeting between Loots and Basson. He pointed to specific discrepancies between the testimonies of State witnesses to make his point. Cilliers said that the State's key witness, Johan Theron was a liar who had perjured himself.

As far as De Fonseca being the link between the Barnacle and CCB eras, Cilliers said there was no forensic proof that De Fonseca died of anything other than natural causes. An operator had claimed he was given the poison to kill De Fonseca by Dr Kobus Bothma, but Bothma had testified that he handed a package given to him by Basson to "a tall man with long hair", whom he had never before seen around Special Forces. In the absence of a link between the accused and operator Danie Phaal, the State was left with nothing to link Basson to both Barnacle and the CCB.

The Judge asked Cilliers how he would explain the deliveries of toxins by Immelman to various people in Basson's office at meetings set up by his secretary. Cilliers' responded saying that the State had not called Basson's secretary to testify and there was no evidence that Basson knew what was being delivered by Immelman, or even saw or handled any of the substances.

The judge said he had asked senior prosecutor, Anton Ackermann, at the start of the trial whether the alleged crimes had been committed against a background of a state of war. He asked Cilliers whether witnesses had given testimony in this regard. Cilliers said that a number of witnesses had indicated this was the case, he pointed to the example of state witness, Henri van der Westhuizen, who had made it clear that targets for elimination were people identified as "about to perpetrate acts of terrorism inside South Africa".

The judge asked whether, if the operators had simply been obeying orders, and had believed that because a war situation prevailed, these orders were legal, there was an onus on the State to prove guilt? Cilliers said the test of guilt was whether or not someone had acted from a genuine belief that he was doing so in self-defence. Conscious knowledge that an illegal act was being committed, was not necessary to prove guilt.

But, the judge pointed out, obeying and executing an illegal order was not a defence in law. Cilliers agreed but said that no one could ever have believed that orders to eliminate prisoners of war were legal. However, since such eliminations had formed part of operations beyond South Africa's borders, and were covered by the Namibian amnesty, the legality or otherwise of such orders was not the concern of this court.

Cilliers told the court that the State had so many problems in proving every one of the human rights violation charges that in any other criminal case, the presiding officer would long since have called the advocates into chambers and asked the State: Have you nothing more substantial to place before me? However, he said, this case had a high media and political profile and the State had exploited this fact. He claimed that the State's case had so many defects that if it were not for the high political profile, it would never have come before the court.

Pointing to the charge related to the possession of Top Secret documents the Judge asked whether the accused did not owe the court an explanation as to why the classified documents in the trunks had not been destroyed between the time the order to do so was issued in 1993, and delivery of the trunks to the home of Sam Bosch in December 1995? Cilliers responded that based on the evidence, the documents in the trunks must have gone to Philip Mijburgh's offices for scanning, and he was thus responsible for all documents relating to Delta G Scientific and RRL. The accused had been in a Libyan prison when the trunks were taken to Bosch's home, and knew nothing about them.

Cilliers said that the State's attempt to link the accused to the CCB through his questioning of CCB agents when Ecstasy was seized at an Irish port was invalid since the court had heard from General Niel Knobel that Basson answered operationally to various people. Cilliers said the reason Basson had become involved in the Ecstasy investigation, was because of the suspicion that the substance had somehow been stolen from Project Coast, and as project officer, this was of direct concern to Basson. As far as facilitating funds for CCB agents in Europe, the fact was that General Kat Liebenberg had recognised the "special talents" of the accused in regard to international banking and financing, and had used him as needed, but this did not mean that Basson was part of a CCB conspiracy.

Beyond pointing out to the court that the defence had accepted the affidavit of Basson's secretary which confirms that she arranged meetings between Immelman, Chris, Gert and Manie, in Basson's office on his instructions prosecutor Torie Pretorius declined to respond.

Monday June 4, 2001

Undeterred by Judge Willie Hartzenberg's earlier suggestion that he abandon further attempts to argue for Basson's acquittal on the fraud charges, defence counsel Jaap Cilliers proceeded to do so in respect of the following:

  • Charge 2. Payment of 3,8-m Belgian francs to Professor Aubin Heyndrickx for travel costs to Iran, procurement of shrapnel contaminated by chemicals used by Iraq and establishment of intelligence channels in Iran.
  • Charge 3. Payment of 90-m Belgian francs to Heyndrickx for acquisition of Chemical Agent Monitors.
  • Charge 6. Payment of 3,2-m Belgian francs to Roger Buffham's company, Contemporary Systems Design, for electronic circuit blueprints needed for the reverse engineering of CAMs.
  • Charge 7. Payment of =A365 000 to CSD for software.
  • Charge 8. Payment of =A310 000 to CSD for "services rendered" to Project Coast.
  • Charge 9. Payment of =A330 000 to CSD for "services rendered".
  • Charge 10. Payment of =A31 100 a month from April 1990 to June 1991 to RF Telecommunications for rental of UK offices for Project Coast.
  • Charge 14. Payment of $4,5-m to Dr David Chu, used as security for a bank loan allegedly used to buy the Jetstar.
  • Charge 15.Payment of $154 338 to Chu.
  • Charge 17. Payment of 75 491 Swiss francs to Chu for chemicals needed by Project Coast.
Cilliers argued earlier for Basson's acquittal on charges 23 and 24, which deal with Basson's alleged self-enrichment from the privatisation of Project Coast front companies Delta G Scientific and Roodeplaat Research Laboratories.

Cilliers is not seeking acquittal at this time on the major fraud charges, including those related to the purchase of Methaqualone from Croatia, the sale of NBC suits, Basson's personal interest in 45 companies that formed part of the WPW and Wisdom groups and the complicated Blackdale/Copperdale/Tagell deal, which allegedly hid the purchase of a peptide synthesiser. He has also not asked for acquittal on charges relating to the purchase of equipment for the laboratory at Speskop, or the purchase of chemical and explosives alarms for the laboratory, despite the fact that these involve Roger Buffham.

Cilliers' arguments centre on criticism of the State's approach, and specifically the forensic audit report. All the State did, he claims, was track the flow of funds, at "great expense and through numerous foreign trips", but despite this, even after a seven-year investigation, forensic auditor Hennie Bruwer had been unable to say with certainty that the equipment which Basson claims was purchased, never existed. The best Bruwer could come up with was that the flow of funds appeared "suspicious".

This was not sufficient to warrant a conviction, Cilliers argued. In order to find the accused guilty, the State would have had to prove beyond reasonable doubt that Basson had willfully made false declarations to the SA Defence Force about what project funds were to be spent on.

Cilliers said the State case was based largely on its findings that the funds in question were not used for the purposes claimed by the accused, but even if the court agreed with this, it did not necessarily constitute criminal intent, as it could be due to simple human error.

On this basis, the accused should, in fact, be acquitted on all the fraud charges, said Cilliers, though he conceded that the alternative theft charges might demand that he supply the court with answers.

Tuesday 5 June, 2001

The State response to argument for acquittal on 10 of the fraud charges, was delivered by Werner Bouwer.

Bouwer argued that the defence had deliberately solicited opinions from almost every witness during cross-examination, and was now attempting to hold these opinions up to the court as evidence. He said the defence had cited only carefully selected passages from the court record and had chosen to ignore crucial evidence. Bouwer said the defence had failed to deal with the accused's failure to disclose his personal interests, which were as important as the reasons he gave for expenditure of Project funds.

Judge Willie Hartzenberg asked Bouwer if the State had proved that anyone in a position of authority over Project Coast funding had ever been unhappy or suspicious about the expenditure incurred. Bouwer said that the State had not because they had to structure the case around what those responsible had known or been told. What the State had proved, however, was that a "total lack of control" was exercised over the millions of rands allocated to the project.

The Judge reminded Bouwer that the State's own witnesses had testified that documented motivations for expenditure were deliberately kept as vague as possible. He asked whether the State expected him to believe that "the entire SA Defence Force" was peopled by idiots, and that not one person had detected a massive fraud in a project that cost millions over more than 10 years? Bouwer responded saying that if any of those responsible for controlling the project funds had ever conducted a physical verification that equipment paid for in terms of the documentation had actually been delivered, someone almost certainly would have detected the fraud. But they had all testified that no physical verification was ever done.

The judge said the State was required to prove conclusively that project funds had actually gone missing, and that a "huge" amount of money had ended up in the accused's bank accounts, evidence of which had not been presented.

Bouwer addressed each of the charges on which the defence is seeking acquittal. He drew attention to what the State believes was a pattern in the fraud. He said Basson was adept at double invoicing, using more than one channel for acquisitions and inflating the price of genuine project needs in order to obtain funding for his private enterprises. He gave the example that Project funds had paid twice for the same NBC suits and pointed to the peptide synthesiser deal as another case in point. The peptide synthesiser at Delta G Scientific had cost about R200 000, yet the accused claimed that millions of dollars were spent on acquiring a second peptide synthesiser. Methaqualone needed by Delta G Scientific was supplied by Organochem =96 yet when called to account over the funds in Charge 19, the accused claimed that they were used to buy methaqualone in a clandestine deal with Croatian officials. Bouwer said the same pattern could be seen in relation to every charge.

Bouwer said the State was prepared to concede that sanctions-busting formed an integral part of Project Coast, but it would not agree that all the transactions conveniently placed in this category by the defence were, in fact, sanctions-busting. He said that in addition to misrepresentations by the accused about the utilisation of project funds, the court also had to consider his non-disclosure of pertinent facts. Why, for example, had he failed to disclose the use of project funds as security for bank loans to WPW? The defence would no doubt argue that this was because certain transactions were "operational" and that neither Knobel nor Theron needed to know the details. But Knobel had made it quite clear that the need-to-know principle did not entitle the accused to deceive him.

What, asked the judge, would the honest project officer have done?

At the very least, said Bouwer, disclosed the existence of all channels through which project funds flowed and, if they were genuine fronts for the project, the existence of all companies and bank accounts used. The accused, however, had not even made these disclosures in 1994, when specifically asked by the Office for Serious Economic Offences about the role played by specific companies. The reason for his silence was that he had deliberately misled the Chief of Staff Finance, Military Intelligence and OSEO all along. Only during the course of his trial had he offered variations on his earlier explanations.

Wednesday June 6, 2001

Judge Willie Hartzenberg raised a number of concerns about the State's case, leading to a series of sharp exchanges between himself and prosecutor, Werner Bouwer. Central to the Judge's concern is that there is no evidence before court confirming or denying that Project Coast ever received equipment Basson claims was purchased with the funds he allegedly embezzled.

Judge Hartzenberg said the State's case is not that this equipment was never delivered to the project, though this is a possibility, but that if it existed, it was not paid for with the specific funds Basson is charged with misappropriating for personal gain.

The Judge cited Charge 2 as an example of the problem the court faces. The State alleges that the =A348 000 paid to Aubin Heyndrickx was not, as Basson told the Office for Serious Economic Offences, in respect of costs for a trip to Iran, but, in fact, for the 13 Chemical Agent Monitors which Heyndrickx supplied. The State alleges that the =A31,3-m involved in Charge 3, on the other hand, which Basson claims was used to pay for said CAMs, was actually used for the benefit of the accused/WPW Group, and in part, for example, to purchase the King Air. The State does not dispute that CAMs were supplied to the project, nor even that Heyndrickx was paid for them, but contends that the fraud lies in Basson's misrepresentations or omissions, and the fact that the flow of funds tracked by the forensic auditor shows that the specific money Basson claims was spent on the CAMs, was actually not spent in the interest of the project, but for personal gain.

In order to prove its case, the State relies almost entirely on explanations offered ex post facto by the accused, for example in response to questions from OSEO. But if CAMs, for instance, were supplied and paid for, can the court find the accused guilty of fraud on the grounds of incorrect attribution of funding alone?

So serious has this issue become that the judge asked the State to address him specifically on this issue, citing legal precedent and case law, on Friday morning.

Bouwer went on to continue where he left off on Tuesday, addressing the specific charges on which the defence seeks acquittal.

Bouwer explained to the court that the auditing function in respect of all SA Defence Force classified projects stopped at the point of transfer to a foreign bank account. In terms of his appointment by the Auditor-General, Petro Theron was responsible for auditing all Project Coast funds transferred abroad or roundtripped to disguise their military origin. In addition, the auditor-general had personnel stationed at Military Intelligence on a permanent basis who were responsible for ensuring that correct procedures were followed in respect of all foreign fund transfers, but that was where their vigilance ended. No one ever examined the flow of funds once they had been paid over to a foreign bank account, because none of the financial controllers was supposed to know what the funds were used for, or who the ultimate beneficiaries were. Bouwer said the accused was aware of this, and exploited the situation to his own advantage.

After Bouwer presented the State's argument on the specifics of the charges in question the court adjourned until Friday morning.

Friday June 8, 2001

The final day of argument in the acquittal phase saw prosecutor Werner Bouwer addressing the legal point raised earlier by the judge, namely if the equipment itemised by Basson had, in fact, been acquired by Project Coast, even if not necessarily with the funds he claimed were used for specific items, wherin lies the fraud?

Bouwer conceded that legal authority on the issue is against the State, but because all the evidence indicated a repeated pattern of behaviour on the part of the accused, the State argued that through his actions, the SA Defence Force was willfully deprived of its fiduciary right to exercise proper control over project funds. He said the accused deliberately kept those responsible for managing the funds, in the dark about the true state of affairs. Through the use of examples Bouwer showed that the SADF had been prejudiced by the way in which Basson had spent the Project funds and that his failure to disclose the actual expenditure of funds had resulted in an irretrievable loss of funds.

Responding to the State argument, defence counsel Jaap Cilliers said non-disclosure could only constitute fraud if there was a legal or statutory onus on a person to make disclosure. If no such onus existed, no court could find grounds for a conviction of fraud. Cilliers said a statutory onus to disclose the truth could not be imposed on someone engaged in criminal activity.

He said that the documents authorising Military Intelligence to make foreign fund transfers could not be relied on as a true reflection of expenditure. Knobel had testified that not only were these documents couched in cryptic terms, but were deliberately designed to prevent those making the transfers =96 junior military officers - from having any indication of the true purpose of expenditure. Theron had testified that he was perfectly happy with this practice, provided he was made aware of the true state of affairs, and the defence contends that in fact, Theron was fully informed, verbally, during his meetings with Basson for audit purposes.

For the court to find the accused guilty beyond reasonable doubt by virtue of misrepresentation due to non-disclosure, it would first have to find that the Military Intelligence documents were, in fact, an accurate reflection of the funding proposals made to the Co-ordinating Management Committee, but the court did not even have evidence that each and every proposal to the CMC was made by the accused.

The essence of the case against the accused, said Cilliers, was the use of project funds for the acquisition of equipment. It was not the State case that the equipment had never been bought, only that it had not been bought with specific funds. On that basis, there were no grounds for a single fraud charge against the accused. Knobel had testified that in each of the specific instances, funding had only ever been requested once. If that was true, what possible justification could there be for investigators to have undertaken numerous abroad to track the flow of funds? Cilliers said it was the flow of funds alone which had led forensic auditor Hennie Bruwer to deduce, for example, that no equipment had been bought for the laboratory at Speskop.

He said it was na=EFve to suppose that not a single CMC member =96some of the most senior generals in the SADF =96 would have realised double-invoicing was being used to hide misappropriation of funds. One might speculate, therefore, that equipment was acquired through another channel, such as Armscor, but who could then say that if the accused stole funds, it was not Armscor's funds that were stolen, while the SADF's were used for legitimate purposes? This, too, he said, would be nothing more than wild speculation, but because a member of the "old" SADF was being prosecuted, it seemed that all the rules of evidence, the very law itself, could be disregarded and set aside =96 just as long as "someone from the old order can be nailed".

Judge Willie Hartzenberg will hand down his decision on whether or not to acquit Basson on all or any of charges 2, 3, 6, 7, 8, 9, 10, 11, 14, 15, 17, 23, 24, 25, 26, 27, 28, 29, 30, 32-35, 36, 37, 38, 38-41, 42-44, 45, 47-50, 51, 52, 53, 56, 57 and 59 on Monday, June 18.

 

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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