'Dr Death' Walks Free. (South Africa)

Article excerpt

The champagne was on ice and barbecue flames alight even before Dr Wouter Basson, popularly known as "Dr Death", walked into the Pretoria high court on 11 April to hear the final verdict in a marathon trial that had lasted two-and-a- half years, starting from October 1999.

The state's bill was R20m (R9.5m of it being legal fees for Basson, borne by the South African Defence Force). Close to 200 witnesses testified on behalf of the stare. Basson called only one witness -- himself, in his own defence.

And the verdict: not guilty on all charges -- 46 charges! And so he was free to walk again.

Giving his famous "Diablo wink", Basson embraced his mother and his lawyer amidst spontaneous applause from a courtroom packed with well-wishers and old apartheid veterans, including the former defence minister, Magnus Malan, and the former surgeon general, General Knobel, who had earlier on testified for the state.

Basson said nothing to the press but rather made a hasty exit through the back door, to prepare for the evening party that was to come.

Basson had to answer 46 charges out of an original 67 (300 pages of indictment), relating to apartheid era crimes, which included 18 of murder, conspiracy to murder, assault and intimidation. And in addition, he faced 24 counts of fraud and theft, possession of drugs and being in possession of classified documents.

Particularly gruesome was a conspiracy to poison 200 SWAPO fighters in Namibia who were allegedly murdered using muscle relaxants and their bodies dumped into the sea by a special aircraft purchased for that purpose. Judge Willie Hartzenberg discharged Basson on that charge even before the case had started, on the grounds that it happened outside South Africa. Several of the original charges were soon to follow suit, like dominoes.

The result came as no surprise to the prosecution which immediately applied for leave to appeal even before reading the text. The judge apparently was planning to take a long leave soon after the judgement. The application will be heard on 29 April.

To the prosecution, the case was decided right at the beginning when Judge Hartzenberg, even before all the evidence had been led, said it would not take much to convince him that Basson was innocent on fraud related charges. The state proceeded to apply for him to step down for a new judge, but he refused.

A great part of the case became a showdown between the chief prosecutor Anton Ackerman and Judge Hartzenberg. Tempers frayed to such an extent that Ackerman opted to discontinue arguing the case, giving way to his junior counsel to see to its completion.

South African law does not have a jury system, and the state has the right to appeal against the decision of a judge who sits at a trial, with or without assessors. The jury system was done away with in 1966, and a jury system in a racially polarised South Africa will most likely be unable to deliver justice.

The state's key contention will be that Judge Hartzenberg was patently biased. And the appeal court, on the record of the trial, will decide whether to accept or set aside the judgement and find any appropriate remedy.

The judgement

In his judgement, the judge called the state's case "fragmented and confusing", and that it was largely superficial, hoping to convince the court of Basson's guilt in a manner which fell far short of the standard "beyond reasonable doubt".

Judge Hartzenberg further added that the state seemed to have decided what the truth was and had urged the court not to believe anything that contradicted the state's version of the truth.

On the fraud charges, he said the state expected Basson to give an account of every single cent that was spent on the South African Defence Force's secretive chemical and biological warfare programme. He moved on to reject every aspect of the state's evidence, a good portion of his judgement based on who and what he believed. …