S v Basson

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J and Yacoob J
• Judgment Date: 10 March 2004
• Date: 10 March 2004
• Court: Constitutional Court
• Docket Number: CCT 30/03
• Counsel: W H Trengove SC (with P Mtshaulana and A P H Cockrell) for the applicant. J G Cilliers (with M M W van Zyl) for the respondent.
• Citation: 2004 (1) SACR 285 (CC)

Ackermann J, Madala J, Mokgoro J, Moseneke J, Ngcobo J et O'Regan J:

[1] The State has applied to this Court for special leave to appeal against a judgment of the Supreme Court of Appeal (the SCA) in terms of Rule 20 and, simultaneously, for leave to appeal directly to this Court against a judgment of the High Court in Pretoria (the High Court) in terms of Rule 18. The respondent, Dr Wouter Basson, opposes both applications. E

Background

[2] During 1999, the respondent, an employee of the South African National Defence Force, was charged in the High Court on 67 counts including murder, fraud, conspiracy to commit various crimes and drug offences. All the offences were allegedly committed before 1994 F when the respondent worked in a division of the Defence Force called the Civil Co-operation Bureau.

[3] During 1997 the accused was arrested, first on charges of contravening the Medicines and Related Substances Control Act 101 of 1965, and later in the same year on charges of fraud. In relation to G both sets of charges, bail hearings were held and the accused was granted bail. In relation to the fraud charges, the bail hearing was held during October and November 1997. The trial on all 67 charges (which now included charges of murder and conspiracy to commit various offences) commenced on 4 October 1999 before Hartzenberg J. H

[4] Before the accused was called upon to plead, the trial was postponed to enable the respondent's legal representatives to apply for the quashing of certain charges in the indictment in terms of s 85(1)(c) of the Criminal Procedure Act 51 of 1977 (the Criminal Procedure Act) [1] and to challenge the admissibility of the October and November bail record I

Ackermann J et al

(the bail record). The question of the admissibility of the bail record was A argued on 6 October 1999 and, on 15 November 1999, the Judge ruled that the bail record was inadmissible in evidence in the criminal trial.

[5] The respondent objected to nine counts in the indictment on various grounds. On 12 October 1999, the Judge upheld the objections in respect of six of the counts - charges 31, B 46, 54, 55, 58 and 61. All these charges were based on s 18(2) of the Riotous Assemblies Act 17 of 1956 (Riotous Assemblies Act). [2] The Judge held that, properly interpreted, this provision did not criminalise conspiracies entered into in South Africa to commit crimes beyond the borders of South Africa. [3] To the extent therefore that the charges related to conspiracies in South Africa but in relation to crimes to be C committed beyond our borders, the charges did not, so the Judge reasoned, disclose an offence.

[6] On 25 October 1999, the accused was asked to plead and the trial commenced. On 14 February 2000, the State applied for the recusal of Hartzenberg J on the grounds that he was biased and had D prejudged the case. On 16 February 2000, Hartzenberg J dismissed this application, holding that a reasonable person would not have believed that he was biased against the State. [4]

[7] The trial then proceeded and lasted for more than a year. More than 140 State witnesses were called and evidence was taken on commission outside South Africa. On 1 March 2001, the State closed E its case. The accused then applied for a discharge in terms of s 174 of the Criminal Procedure Act. This application succeeded in respect of some of the charges. The accused was the only witness for the defence. He gave evidence for about two months and the defence closed its case on 26 September 2001. On 11 April 2002, the accused was F acquitted on all the remaining charges. [5]

[8] The State immediately launched an application in terms of s 319(1) of the Criminal Procedure Act to have certain questions of law reserved for consideration by the SCA. [6] It also sought, in terms of the Constitution of the Republic of South G Africa Act 108 of 1996, leave to appeal to the SCA against the trial Court Judge's refusal to recuse himself.

[9] On 3 May 2002, the High Court handed down judgment on this application. It reserved a single question of law in terms of s 319(1) for

Ackermann J et al

consideration by the SCA. That question was whether the A State was barred from seeking reservation of the question of law as to whether the trial court Judge ought to have recused himself in February 2000 because it had failed to indicate in February 2000 that it intended to seek such reservation. In the event that this question was answered in favour of the State, Hartzenberg J conditionally reserved three further questions of law. They were the following: B

•

Whether Hartzenberg J had erred in law in refusing to recuse himself on the grounds of bias;

•

whether Hartzenberg J had erred in law when he heard argument regarding the admissibility of the bail record, before the accused had been called upon to plead; and C

•

whether Hartzenberg J had erred in law when he ruled that the bail record was inadmissible in the trial.

The Judge refused to reserve the other questions of law sought by the State, including the question relating to the quashing of some of D the charges.

[10] In June 2002, the State appealed to the SCA on the question of law reserved by the High Court. Simultaneously it petitioned the SCA in terms of s 319(3), read with s 317(5) of the Criminal Procedure Act, for the reservation of the questions of law that Hartzenberg J had declined to reserve, including the question of the quashing of the E charges. In the alternative, the state applied to the SCA for leave to appeal to it in terms of the Constitution against the trial Court Judge's refusal to recuse himself.

[11] In November 2002, the Registrar of the SCA wrote to the F State's lawyers indicating that its petition for the reservation of further questions of law and its accompanying application for leave to appeal were not in order. The following month, the State filed a further affidavit seeking to rectify the situation and sought condonation of its non-compliance with the Rules. G

[12] The matter was argued before the SCA in May 2003. In its judgment, the SCA held that the question whether the trial Judge should have recused himself was one of fact, not law, and could therefore not be reserved under the provisions of s 319 of the Criminal Procedure Act. It accordingly held that the question reserved by the High Court H raised purely academic issues and struck the question from the roll, as well as the first conditionally reserved question. The question conditionally reserved concerning the admissibility of the bail record was also struck from the roll because, according to the SCA, it raised questions of fact and not of law. In the circumstances, the second I conditional question was considered to be academic and was struck from the roll on that basis. The SCA also dismissed the application for condonation with regard to the reservation of additional legal questions, including the question of the quashing of the charges. The application for leave to appeal in terms J

Ackermann J et al

of the Constitution was held not to be properly before the SCA and therefore A also dismissed. [7]

[13] The State now seeks special leave to appeal to this Court against the judgment of the SCA on the following grounds:

•

The SCA ought to have set aside the acquittal on the basis that the judge was biased or could reasonably be perceived to B have been biased;

•

the SCA ought to have set aside the acquittal on the basis that the judge erred in finding that the bail record was inadmissible in the trial; and

•

the SCA ought to have reversed the decision of the High Court quashing the charges based on the Riotous Assemblies Act. C

The application is out of time, in that it was filed more than 15 court days after the SCA handed down its judgment [8] and the State has accordingly applied for condonation of the late filing of the application. The reasons given for the delay are the complexity of the matter and the voluminousness of the record. D

[14] After filing its application for special leave to appeal, the State also lodged an application in terms of Rule 18 for leave to appeal directly to this Court against the High Court's judgment acquitting the respondent on the ground that the proceedings were E vitiated by the actual or perceived bias of the Judge against the State during the criminal proceedings. As indicated above, the respondent opposes both applications.

[15] On 20 August 2003, the Chief Justice gave directions requesting the parties to lodge argument on the following preliminary F issues raised by the applications:

'2.1

Was the accused in jeopardy of being convicted at his trial? If so, and if the appeal were to succeed, would a further prosecution be competent if regard is had to the provisions of s 35(3)(m) of the Constitution. G

2.2

If a further prosecution would not be competent is it in the interests of justice for leave to appeal to be granted?

2.3

If a further prosecution would be competent, then bearing in mind the nature of the charges against the accused, the fact that the trial commenced in October 1999 and the provisions of s 35(3)(d) of the Constitution, that every accused person H has a right to have their trial begin and conclude without unreasonable delay, is it in the interests of justice to hear an appeal directed to setting aside the acquittal of the accused, which if successful, might expose him to the possibility of being required to stand trial again several years after the first trial commenced? I

2.4

Is a decision by the Supreme Court of Appeal as to what

Ackermann J et al

constitutes a question of law for the purposes of s 319 of the A Criminal Procedure Act a constitutional matter?

2.5

Is a...