In a bulky 60-page judgment yesterday, appeal judges Piet Streicher and Mohamed Navsa ruled that the state did not have the right to appeal.
If permission to appeal were granted, the appeal court could have set Basson's acquittal aside. Such a decision would then have entitled the state to a new trial.
However, a full bench of appeal judges concurred that the state could not appeal against trial judge Willie Hartzenberg's refusal to recuse himself.
Judge Hartzenberg acquitted Basson in April 2002 on 46 charges, ranging from murder and drug trafficking to fraud and theft.
Basson was the head of the apartheid government's biological warfare programme during the 1980s.
At an early stage of the protracted and expensive trial, the state requested Judge Hartzenberg to recuse himself, accusing him of bias.
He refused, finding their arguments in this application "trivial" and "unfounded".
This was the main issue in the state's appeal.
The appeal judges found Judge Hartzenberg's refusal did not relate to an error of law on his part.
South African law did not grant the state the right to appeal against the factual findings of a criminal-trial court, even if the findings were incorrect.
Three other related questions of law about which the state appealed in the case were struck from the roll yesterday.
The judges found one of them "of academic interest only", and the remaining two not raising any legal issue.
The state was also refused permission to appeal regarding 37 further questions of law.
Judges Streicher and Navsa found these questions not only without merit, but also administratively defective.
They said the state had committed "flagrant non-compliance with the rules" when preparing this application.
It was so bad that permission could have been denied solely for this reason.
Among the examples listed by the state in its appeal as indicating Judge Hartzenberg's bias were remarks he made during the trial.
Judge Hartzenberg at one stage asked one of the state advocates in court "whether he has practised his signature for a long time".
The judge had also told a state advocate leading testimony that he was "bored of listening to the fine detail which was put repeatedly before him".
When a state advocate remarked that he was confused after an objection by Basson's lawyer, Judge Hartzenberg reportedly reacted: "Well, if this is the case only now, then I am glad".
The appeal judges found that Judge Hartzenberg used the correct legal test to decide the merits of each of these alleged indications of his bias. - Sapa
Published on the web by the Star on June 4, 2003.
© Star 2003. All rights reserved.