05/11/2003 17:34
JOHANNESBURG - The State wanted the Constitutional Court to bend the rules to secure a conviction for Dr Wouter Basson, said his counsel on Wednesday.
Jaap Cilliers SC said the Pretoria High Court had found Basson, a chemical and biological warfare expert of the apartheid government, not guilty on a number of charges.
The Supreme Court of Appeal (SCA) refused to allow the State to pursue an appeal in this regard.
What the State's request to the Constitutional Court boiled down to was, according to Cilliers: "You must help us just to find a way against this accused."
He told the court: "You'll have to bend the rules to give leave in this matter."
The State is asking the Constitutional Court for special leave to appeal against a decision by the SCA effectively preventing it from instituting a new trial after Basson's acquittal on 46 charges - including murder, drug trafficking, fraud and theft - by the Pretoria High Court last year.
The State also wants leave to appeal to the Constitutional Court against Judge Willie Hartzenberg's refusal to recuse himself from the High Court trial. The State claimed he was biased.
Wouldn't quash 'umbrella charge'
In its bid, the prosecution also cites the judge's decision not to allow the bail record into the trial proceedings, and his ruling to quash six charges under the Riotous Assemblies Act - relating to conspiracy to murder people abroad.
Hartzenberg said the act did not apply to offences committed outside South Africa.
Cilliers argued that, even though these charges were struck off at the request of the defence, Hartzenberg would not quash an umbrella charge, encompassing the allegations contained in those charges and others, where the offences had taken place in South Africa.
The evidence that would have been led for the quashed charges was led in support of the umbrella charge.
To allow the State to reinstitute the quashed charges would therefore mean Basson was charged on allegations on which he had already been acquitted.
Cilliers also said the people who admitted in court they had committed the murders did not get indemnity from prosecution. Yet, the State had decided not to prosecute them.
In most cases, the intended victims had not been killed. Former cabinet minister Pallo Jordan and Water Affairs and Forestry Minister Ronnie Kasrils were still alive, for instance.
The alleged conspiracy took place in 1979, and the 20-year prescription period had lapsed, which meant the State could not charge Basson for that now in any case, said Cilliers.
On the issue of the judge's perceived bias, Cilliers said Basson had no hand in appointing the judge for his trial.
Judgment was reserved. - Sapa