S v Basson

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 09 September 2005
• Citation: 2007 (3) SA 582 (CC)
• Docket Number: CCT 30/2003
• Counsel: W H Trengove SC (with A Cockrell and N Fourie) for the applicant (the State). J G Cilliers (with M M W van Zyl) for the respondent.
• Court: Constitutional Court

The court:

Introduction

[1] In 1999, Dr Basson, the respondent in this Court, was charged in the High Court on 67 counts, including murder, fraud, certain drug offences and conspiracy to commit various crimes. The majority of the offences were allegedly committed before 1994 when the H respondent worked in a division of the South African Defence Force (the SADF) called the Civil Co-operation Bureau and headed South Africa's bacterial and chemical warfare programme. In April 2002, at the end of a long trial, the respondent was acquitted on all counts. This application for leave to appeal which is brought by the I State against a judgment of the Supreme Court of Appeal (SCA) arises from these criminal proceedings. In essence, it concerns three central issues: whether the conduct of the Judge during the trial proceedings was such as to give rise to a reasonable perception of bias; secondly, whether the trial Court was wrong to exclude the evidence led in bail proceedings from the criminal trial; and, J

The court

thirdly, whether the State is entitled effectively to appeal against the quashing of certain charges at the outset of the A proceedings at this stage; and, if it is, whether those charges were wrongly quashed. Each of these issues gives rise to further supplementary issues which will be elucidated in the course of this judgment. B

[2] A preliminary hearing in respect of this application for leave to appeal was held in November 2003 after which this Court handed down a judgment in which it held that all three issues under consideration concerned constitutional matters within the jurisdiction of this Court. [1] Leave to appeal was not granted, however, as it was held to be premature at that stage to deal fully with the second requirement for leave to appeal, namely whether it is in the interests of justice C for leave to be granted. Following upon the preliminary hearing, the relevant portions of the record of the criminal proceedings and proceedings on appeal, amounting to some 22 000 pages, were lodged with the Court. Full argument on the application and its merits was heard from 21 - 25 February 2005. [2] D

Background to the three issues raised in this Court

(a) Bias

[3] Just more than three months into the trial in the High Court, on 14 February 2000, the State applied for the recusal of the Judge on the grounds that he was biased and had prejudged the case. E On 16 February 2000, the Judge refused this application holding that a reasonable person would not have believed that he was biased against the State. [3] The trial then continued and ran until 26 September 2001. Judgment was handed down on 11 April 2002. F

[4] Immediately after judgment was handed down, the State applied to have a question of law relating to the failure by the Judge to recuse himself reserved for decision by the SCA. On 3 May 2002, the High Court handed down judgment in which it reserved a single question of law for consideration by the SCA and three further questions conditional upon that question being answered in favour of G the State. The single question reserved was whether the State was barred from seeking the reservation of the question of law as to whether the trial 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. If that question were answered in favour of the H State, the Court reserved a further question for consideration by the SCA: whether the trial Judge had erred in law when he refused to recuse himself on the grounds of bias in February 2000..

The court

[5] The SCA held that the question whether a Judge was biased gave rise to a question of fact not law, and could not be reserved A under the provisions of s 319 of the Criminal Procedure Act 51 of 1977. It accordingly struck both questions relating to bias from the roll. In its preliminary hearing on the application for leave to appeal, this Court held that the question of whether the trial Judge was biased did give rise to a question of law, not fact, and that such B question did give rise to a constitutional matter. The Court did not decide, however, whether in delaying its application to reserve the question of law the State became barred from seeking the reservation of the question later. Nor did it decide whether the recusal issue should be determined on the basis of the trial record up until February 2000 C only, or whether it should be determined on the full record of the trial. These are matters to be determined in this case.

(b) The admissibility of the bail record D

[6] The Office for Serious Economic Offences (OSEO) first started investigating allegations of fraud against the respondent during 1992. OSEO is an institution that was established in terms of the Investigation of Serious Economic Offences Act 117 of 1991 (the ISEO Act). [4] Section 5(8) of the Act [5] provides that witnesses examined in terms of s 5(6) of the Act [6] may not refuse to answer questions on the ground that the E answers may be incriminating, but it also provides that no evidence of such questions or answers may be admitted in subsequent criminal proceedings against the witness concerned. F

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[7] The allegations against the respondent concerned the financial management of a top secret project of the South African A Defence Force code-named Project Coast, whose purpose was to develop a chemical and biological warfare capability for South Africa. The respondent who is a cardiologist was the leader of this project. During the OSEO fraud investigation, the respondent was subjected to 39 days of questioning by Adv Fouché of OSEO in terms of s 5 of B the ISEO Act. The respondent was not legally represented during this questioning.

[8] The respondent was first arrested on charges of contravening the Medicines and Related Substances Control Act 101 of 1965 during 1997. [7] A bail hearing was held and the accused was granted bail. Later in the same year, he was arrested again, this time on charges of C fraud related to the OSEO investigation. [8] Once again a bail hearing was held over a series of days at the end of which the accused was granted bail. During these bail proceedings, the State was represented by Adv Fouché who had conducted the OSEO questioning. The respondent was questioned on D the subject-matter of the fraud charges, and the record of the OSEO questioning was used. It is the admissibility of this bail record which is in issue in this application.

[9] At an early stage, the defence requested the State to indicate whether it intended to rely on the record of the bail proceedings in the criminal trial. The State responded by indicating E that it did. The defence then successfully sought a ruling from the trial Court that the bail record was inadmissible. This argument was heard before the accused had pleaded, partly to avoid an unnecessary delay in the trial which would otherwise have been occasioned by the defence application to quash certain of the charges. The State argues F that the trial Court erred in hearing argument on the exclusion of the bail record at this early stage and also in making a decisive ruling on the entire record in circumstances where the State had not indicated in what respects it intended to rely on aspects of the record. G

[10] At the end of the trial, the State applied for the reservation of a question of law in respect of the trial Judge's decision to refuse to admit the bail record, among other things. The Judge conditionally reserved two questions of law in this regard. The first was whether the Court had erred in law when it heard argument H regarding the admissibility of the bail record before the accused had been called upon to plead; and, secondly, whether it had erred in law when it ruled that the bail record was inadmissible in the trial.. I

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[11] These two questions of law were made conditional upon the SCA answering a further question reserved by the Judge in favour of the A State. That question related to whether the State was barred from seeking a reservation of a question of law as to whether the trial Judge ought to have recused himself in February 2000 because it failed to indicate in February 2000 that it intended to seek such reservation. It is not immediately clear why the Judge should have made the B reservation of the two questions concerning the bail record conditional upon the SCA's ruling in the State's favour on the question of whether the State should have indicated that it intended to pursue a remedy in respect of the Judge's refusal to recuse himself. The questions do not seem to be inter-related at all. Be that as it may, nothing turns on this, for the SCA did deal with each of the C conditionally reserved questions of law.

[12] When the matter came before the SCA, [9] it ruled that the admissibility of the bail record gave rise to factual issues and not questions of law. It therefore struck both questions from the roll. In this Court's preliminary judgment, it D held that the SCA had erred in this respect and that the question of the bail record did give rise to a question of law and to a constitutional issue. The application for leave to appeal now needs to be considered in the light of that decision. E

(c) The quashing of the charges

[13] Before the commencement of the trial, the respondent objected to nine counts in the indictment on various grounds. After hearing argument, the Judge dismissed two of the objections and upheld seven. Six of the seven objections upheld related to six counts in terms of s 18(2) of the Riotous Assemblies Act 17 of 1956 [10] and to conspiracies to commit serious crimes, mainly F ...