HOME
The South African Chemical and Biological Warfare Programme
PREV                 INDEX                 NEXT
 

Trial Report: Fifty-Nine - second report on the closing arguments

This report covers the period Monday November 26 - Friday November 30, 2001

Within minutes of senior prosecutor Anton Ackermann launching his final argument on the fraud charges, it became clear that this crucial phase of the trial would turn into a battleground between Judge Willie Hartzenberg and the State.

Tension between the judge and the prosecution, which has been simmering since February 4, 2000, when a sharp exchange gave rise to the unsuccessful application for the judge to recuse himself on the grounds of bias and prejudging the case in favour of the accused, boiled over by Wednesday, and on Thursday morning, Ackermann informed the court that he would leave presentation of the remainder of his argument to junior State counsel Werner Bouwer.

The State's final argument on the fraud consists of two volumes, the first runs to some 387 pages. The argument is intended to prove beyond reasonable doubt, based on the evidence of witnesses and thousands of supporting documents, that there is no substance to Basson's claims that he established and managed the WPW Group and all its subsidiaries on behalf of Russian, Libyan and East German financial principals, and that these companies were then "hijacked" by the SA Defence Force to serve the interests of Project Coast.

The State case against Basson is based on the findings of a seven-year investigation by the Office for Serious Economic Offences and an international forensic audit, which shows that the WPW Group was set up by Basson for personal gain, and used to defraud the SADF/Project Coast for his own benefit.

The second volume of the State argument, not yet filed with the court, deals with the specific fraud charges. By the end of the week, it was not clear whether this argument will be presented before the court goes into recess for the summer on Friday, December 7, or will be held over until next year. What is now certain is that the scheduled legal argument by Dr Torie Pretorius on the human rights charges, which would have started on Tuesday, December 4, will not be heard this year.

Ackermann told the court that in deciding whether or not Basson was guilty, there was really only one question to be answered: Did the foreign financial principals exist, or where they a figment of the accused's imagination? The answer to this question would determine whether or not Basson's defence was reasonably, probably true, or whether the State was correct in averring that all activities of the WPW Group were conducted for personal gain, and that the existence of The Principals was a fabrication.

The judge was at something of a disadvantage, Ackermann said, having presided over the case for more than two years without the assistance of assessors, who could have acted as a sounding-board.

It was at this point that Hartzenberg launched the first of what would be innumerable attacks on the State case, setting a pattern that would preclude Ackermann from progressing beyond page 22 of his written heads of argument on the first day. Progress for the rest of the week continued at a similar pace, with the majority of time in court being taken up by increasingly acrimonious exchanges between the judge and the prosecutor.

Hartzenberg said that during the 17 years he has served on the bench, he has "always" tried to focus only on the litigants in any case. The Basson case, however, was somewhat different, not only because it encompasses "many side-issues" but because he is still not sure who the complainant is, particularly in regard to the fraud charges. The SADF's 1992 investigation into alleged irregularities (specifically regarding Basson's role in the R10-m development of Merton House) had cleared the accused. At the time, the Co-ordinating Management Committee of Project Coast had been in place and the name of the Wisdom Group of companies had become known to them during the course of the probe.

But despite a thorough investigation, said Hartzenberg, not a single SADF member had shown any concern over the possibility that any military funds had been misappropriated. In fact, it seemed to him that both the subsequent OSEO investigation and the State prosecution of Basson had been an enormous embarrassment for the SADF, which had "known exactly what Basson was doing at all times, and had no problem with his activities". Despite this, the State apparently expected the court to find otherwise.

Indeed, said Ackermann, because the facts presented showed beyond doubt that the SADF, including General Niel Knobel, had been deliberately misled by Basson, and had "never realised that he was stealing the SADF blind". If the judge accepted that East Germans, Libyans and Russians were "given free rein" to operate within South Africa, and that the SADF top management were aware of this, there was no point at all in the State even presenting final argument. A massive body of evidence had been presented to show that there never were any financial principals and the defence had not called a single witness to corroborate Basson's claim that there were, despite applying an intimidatory tactic during cross-examination of almost every witness by offering veiled threats that a phalanx of witnesses would be called to support Basson's alibi and defence.

On the basis of the State case, the judge argued, after setting up the WPW Group at the end of 1986, the accused had spent the next five years "doing absolutely nothing for the benefit of Project Coast", spending the time squandering SADF funds on his personal interests, without anyone in the SADF ever noticing.

Not entirely, said Ackermann - South Africa did have the new generation teargas, CR, to show for Basson's efforts - but that was about the sum total of achievements throughout the lifespan of Project Coast.

It was patently obvious, Ackermann said, that "we are precisely back where we were on February 4 last year, and that despite the fact that the State has spent two years proving to the court that there were no financial principals, you have not moved one iota from your position stated at the time, namely that it would take very little to convince you that the WPW Group was not set up to serve the interests of Project Coast". This despite the fact that at not a single meeting of the CMC was any mention ever made of Libyans, East Germans and Russians being involved, and despite the uncanny coincidence that at all times, the needs and interests of the SADF/Project Coast just happened to dovetail neatly with those of The Principals.

In the grey world of chemical and biological warfare, observed the judge, "everyone knows what everyone else is doing". The accused had been specifically ordered to infiltrate the international CBW milieu, and he had succeeded in doing so and in the process, made contact with a host of people who had been of assistance to him, such as Wilfred Mole, Blucher and Roger Buffham.

No, said Ackermann. The accused had been faced at a certain point with a major dilemma. When confronted with documentary proof of the WPW Group's structuring, he had to find an explanation, and proceeded to invent The Principals and the highly improbable tale of the SADF "hijacking" their interests to own advantage. The effect of the tale spun by the accused was that the SADF paid for CBW research wanted by The Principals.

And, said the judge, by all accounts, the SADF was entirely satisfied that it "got what it paid for". But what, asked Ackermann, had the benefit of this arrangement been to The Principals?

They had been furnished with the same research findings as Project Coast, said the judge.

In other words, said Ackermann, in Angola the SADF was at war against such forces as the Russians, but the results of CBW research conducted in South Africa was being given to them, the enemy? Yes, said the judge - but in "edited" form.

So, said Ackermann, the SADF's managers, including General Kat Liebenberg, were handing over to South Africa's declared enemies at the time, information on CBW that could be used against their own troops. If that was what the judge believed, said Ackermann, "every general serving in the SADF at that time will have to be charged with high treason for knowingly supplying the Russians with South Africa's CBW research findings".

But Mr Ackermann, said the judge, "the information came from the Russians - clandestinely, to be sure, and at a cost of millions".

The State had proved beyond reasonable doubt, said Ackermann, that there were no foreign principals involved. But, said the judge, by the "early 90s it was quite obvious to anyone that huge political change in South Africa was imminent".

Ackermann said he was not concerned with the political dispensation in the 1990s. He was talking about 1986, 1987, 1988, when the WPW Group was set up. During those years, South Africa was the target of a campaign of terrorism, in which Libya was deeply involved. (Former SA Foreign Minister) Pik Botha had not been called to testify in the case, but Ackermann would lay his head on a block that had he been, he would have said unequivocally that at that time, there was no contact or liaison of any kind between "any Libyan and anyone in the South African government or the SADF".

Certainly there would have been no overt links, said the judge, but the Libyans did have an interest in what was going on in South Africa.

Yes, said Ackermann, their interest was in supplying the bombs used against civilians in Wimpy Bars and the landmines planted on farm roads. Basson had purchased the King Air in 1988, and on his version, the aircraft was then used by Razak and his colleagues to travel all over South Africa, while under surveillance by Military Intelligence. If Libyans were traversing South Africa at that time, they could have had only one purpose: Identification of possible targets for terror attacks.

The sole reason the WPW and Wisdom groups had been established, Ackermann argued, was to provide Basson with a vehicle to channel SADF funds for personal gain.

But the State had not proved that a single cent of SADF money went into the accused's pockets, said the judge, only that funds were paid to companies in the WPW/Wisdom groups. And what about the millions in cash which the accused received, asked Ackermann.

He had explained what happened to that money, said the judge, it was given to The Principals. Furthermore, the court knew that Bernard Zimmer had paid cash amounts to Trevor Floyd and "other people, and the Civil Cooperation Bureau". So if the accused said the cash was used in the interests of Project Coast, what proof was there that this was not true? Had Ackermann ever considered that "the principals" could have been the SADF itself? Had this possibility ever even occurred to him?

That, said Ackermann, was not the defence offered by the accused, and such a scenario had not been put to a single witness under cross-examination. The only "principals" offered by Basson were the Libyans, Russians and East Germans.

Ackermann said that Basson had been unable to explain to the court how, for example, a company such as Phoenix, a filling station which made its money from the sale of petrol and which served Project Coast and 7 Medical Battalion by modifying their vehicles, could ever have been of any benefit to The Principals. But the State had not proved that a single cent of the money made by Phoenix had found its way into Basson's pockets, said the judge.

Your Honour, said Ackermann, it was patently obvious that had a fruit and vegetable shop formed part of the WPW or Wisdom group, the accused would have come up with a convincing explanation for its existence - or at least an explanation "that would have convinced you".

Ackermann argued that Basson's explanations and defence had "shifted dramatically" from when he was first questioned about his involvement in the WPW/Wisdom groups, to the point where he was confronted, in court, with irrefutable documentary proof. This was why the mythical Libyan, Russian and East German principals had never before been as much as mentioned, the first time Basson claimed the international business empire was set up and run on their behalf, was during this trial. Despite numerous opportunities to do so during the OSEO investigation, Basson had never identified these groups as The Principals. The CMC had never known about them either.

But, said the judge, the accused did testify that former surgeon-general Nicol Nieuwoudt was aware of their existence and the mutually beneficial arrangement, and that he (Basson) had thereafter operated on the assumption that Nieuwoudt's successor had been duly informed. Would any SADF member actually admit to having been involved in any of those front companies? Obviously they would have denied any involvement during the OSEO investigation, and Ackermann should remember that there was a CMC document specifying that no information about "sensitive" aspects of the project were to be disclosed, as late as 1995.

The court could not possibly rely on what General Niel Knobel knew or did not know, said Ackermann, by his own testimony, he knew at all times only what Basson told him or wanted him to know.

What possible benefit could the work conducted by QB Laboratories have held for The Principals, Ackermann asked.

A great deal, said the judge. Research on the effect of the climate in sub-Saharan Africa on aerosolized incapacitants would have been of immense value to the Russians, for example. And if The Principals were involved in the manufacture of NBC suits, it would certainly have been useful for them to have access to the research reports emanating from work done at SRD on protective equipment.

Attempting to make his point, Ackermann said Basson had been deliberately evasive about his role in the Wisdom Group, and if he had nothing to hide, one had to ask why. Well, said the judge, every witness called in this case - "from the USA to South Africa" - has underplayed his role - "all" of them - David Webster, Zimmer, Tjaart Viljoen, Chris Marlow, the lot".

At this point, Ackermann told the judge he would sincerely appreciate it if, when formulating a statement or question, Hartzenberg did not first look at the accused for approval/confirmation of the facts. Hartzenberg denied doing so.

Throughout the case, said Ackermann, the defence strategy had been for Basson's advocates to put "wild and unsubstantiated" claims to witnesses during cross-examination, but not only had no witnesses been called to substantiate these claims, in many instances, Basson's own testimony had either contradicted them, or he had offered an entirely different version.

Ackermann said Basson's claim that at late as 1995 he was still furnishing The Principals with research reports was nothing less than a blatant lie. The project had ceased to exist at least two years before and it "boggles the mind" that the judge could even consider, as he had indicated, that contact with The Principals as late as 1995 was part of his instructions to shut down Project Coast. Ackermann said it was equally beyond belief that the judge evidently found nothing untoward in Basson's version of his links with Roger Buffham. Indeed, it was the State's perception that the court had dubbed Buffham a non-credible witness without him ever being called to testify.

The State perception was entirely correct, said the judge. And while on the subject, he assumed the State would argue that (David) Chu and Zimmer were honest and credible witnesses?

It was extremely strange, said Ackermann, that every one of the foreign witnesses had been savagely attacked for their links to South Africa: Chu was dubbed both a drug smuggler and a money launderer in no uncertain terms, yet not a single step had been taken against any of them by authorities in their own countries. Not against Chu, or Webster, or Zimmer, or, for that matter, Dieter Dreier or Roger Buffham. The name of the MAIS Corporation, the alleged Russian intelligence front in Switzerland, had been in the public domain for months, right down to the street address from which it operated, yet nothing had been done, and not one foreign witness had even been questioned about his alleged role in sanctions-busting.

As the week wore on, the exchanges became more acrimonious. At one point, on Wednesday, Ackermann asked the judge: "Is it really necessary that I continue to argue the remaining 24 fraud-related charges against the accused? My perception is that the court decided 18 months ago already that the accused in this case is innocent of all the charges against him, and that this is a waste of time."

Hartzenberg responded that this was "unfair", as "I could always be convinced otherwise".

Ackermann eventually simply disregarded the questions and comments from the judge, simply continuing to read from his heads of argument after informing the judge that it was quite obvious Hartzenberg was not prepared to entertain the idea that Basson lied under oath.

The judge responded that in three days of listening to Ackermann, all he had learned from the argument was that according to the State, "everything which the accused said that does not support your case was a lie…your entire argument boils down to a claim that the accused is incapable of telling the truth".

That was not entirely so, said Ackermann, and if the judge so desired, he would take the time and trouble to go through Basson's testimony (which covers some 6 000 pages of the court record) and highlight the passages which the State accepts were, in fact, truthful. However, he really did not see the point of continuing to argue the case. Because, said Ackermann, the accused consistently had "at least five answers" for every question put to him, and some of the explanations offered were "risible, bordering on the absurd", while in other instances, he had taken and manipulated evidence given by State witnesses in order to give his own version of events a ring of veracity.

The judge responded that he had listened to the accused testifying for 40 days on a wide range of matters, and not in an argumentative manner. "My impression is that he merely tried to provide the court with the facts," said Hartzenberg.

On Thursday morning, Ackermann declined to present any further argument, turning the task over to his junior. Bouwer fared little better, but after several exchanges, Hartzenberg told him he would no longer engage the junior advocate in debate "because it seems as though you do not want to understand my point".

The process resumes on Monday, December 3 and is expected to continue for most of the week.

 

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]

 
Hosted by www.Geocities.ws

1