Dr Death - Recusation, Jurisdiction & other issues

Errors of Judgement or conscious Abuses of Power?

 

Constitutional Court CCT 30/03 - State vs. Basson

 

The Constitutional Court judgement (CCT 30/03) (www.concourt.gov.za) - State vs. Wouter Basson (named by media as Dr Death) – contains a number of Constitutional violations. Double Jeopardy, or more correctly Quadruple Jeopardy has previously been dealt with. Reading further into the judgement other serious issues come to light.

 

The judgement has 3 components:

• the main majority judgement itself (Justices Ackerman, Madala, Mokgoro, Moseneke, Ngcobo, O’Regan), then 2 separate arguments,

• one by the Chief Justice Chaskalson

• and the other by Justice Sachs.

Briefly the background:- Basson, an SA Defence Force member, was allegedly a perpetrator of actions, considered as war crimes and/or civil crimes at the State’s behest or on his own initiatives, for & on behalf of the then Nationalist Party State during the Apartheid Era. This era was one of conflict between:- the leadership & power forces of those oppressed by the Nationalist Leadership & their power forces. Some fifty years of increasing aggression finally resulted in a negotiated settlement and a change of statehood for South Africa. Essentially:- the previous Sovereign power, the Nationalists, were ousted out of power through a democratic election that brought the previous opposing forces into power of the new Sovereign State.

 

A Truth & Reconciliation Commission was established and Amnesty offered. Basson elected not to take up the Amnesty offer. He was eventually arrested in 1997 – during the 1997 to 1999 period the charges had increased to 67 (drugs, fraud, murder, conspiracy).

 

Basson was asked to plead in October 1999; the trial ended with his full acquittal on April 11, 2002 – TWO & A HALF YEARS of court room drama preceded by some years of pre-trial/post-arrest drama, preceded by some two to three years of investigational enquiries. In other words – one person, Basson, – an upper-middle rank member of the Apartheid Defence Force, a then opponent of the now current Government, was subjected to some 7 to 8 years of intensive legal processes.

The State applied to the Constitutional Court for leave to Appeal against a Supreme Court of Appeal judgement (setting aside of HC judgements on: Recusation, quashing, bail record) and also for appeal against a High Court (Pretoria) judgement (Recusation)

 

The matter was extensively covered by all the main media throughout the years

 

The majority were no doubt enjoying Basson’s discomfort, but were overlooking the fact that the Constitution, that protects them too, was being eroded, emasculated.

In reading the judgement one is immediately drawn into the complexity of legal argument – but the simple issue of Recusation & Jurisdiction is not addressed correctly at all. What is referred to here is the Jurisdiction of any Court in South Africa, and the Recusation of any & all judges within South Africa.

 

It is impossible for any South African judge to claim that he/she did not have some bias for or against either of the two “warring” parties – the then Nationalist Government or the “terrorists”; which then “terrorists” are now essentially the new Government. And it is the new Government that is, through the prosecuting authority, targeting one of its old opponents.

The issue raised by the State, that the trial judge should recuse himself, came at the early stage of the trial, over a year before the state closed its case. The judge refused to recuse. After the verdict the State is now appealing, partly, the failure to recuse.

 

We have a Constitution! – the State could have raised an urgent application to the SCA and/or the CC immediately after the judge refused to recuse himself, but they didn’t.

Similarly for the other appeal grounds – they could have been raised as urgent matters long BEFORE the trial concluded.

 

Commentary on Recusation can be found in Erasmus’ Commentary on Superior Court practice after S10. In essence it states that the test for Recusation is from the perspective of a layman – this is a common sense statement, but ….

 

... Reading the CC judgement raises serious concerns as to whether the CC judgement is a case of “errors of judgement” or “conscious abuses of power”.

 

Chaskalson Ch J at Para 99 states “I can see no difference between a wrong decision that leads to failure of a prosecution and a wrong decision that leads to the conviction and imprisonment of an accused person.

 

There clearly is a difference – it lies in the nature of the contest (trial) that leads to the wrong decision – the State is a Heavy-weight, the Accused a Light-weight. The State has immense resources at their disposal, the Accused minimal. Admittedly, in this case, the Accused’s defence is paid by the State - but it does not diminish the personal stress suffered. That is why the Constitution provides under S35 (3)(d) “to have their trial begin and conclude without unreasonable delay”, and (m) “not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted”.

 

This is a “fail-safe” protection.

 

Five years between arrest and acquittal does not fulfil the S35(3)(d) requirement.

 

Further; what recourse does the State have for a convicted person? - Correctional detention - a wrongly freed person suffers “correctional” processes during the arrest & trial; so all is not lost from the States perspective.

 

Justice Sachs’ arguments are emotive as he brings up the detailed nature of the alleged crimes by Basson – this observation is not intended to diminish the horror of the crimes, it is to ensure fairness, impartiality. Sachs J. was known to be an opponent of the Nats, he was also a victim of an attack that caused him serious injury. There is no intent to diminish the suffering that he endured – but he simply cannot be considered impartial.

 

Chief Justice Chaskalson was known to sympathise with the ANC, and opposed the Nats. (Was he imprisoned?) – he also cannot be considered impartial.

Every Justice of the CC was affected by the Apartheid era. How can any of them be impartial?

 

The simple fact is that every justice of the Constitutional Court should have recused themselves from hearing the matter. The Justices should have referred the allegations against accused to an independent International Civil/War Crimes Court/Tribunal/Prosecutor because the accused was a member of the combatant forces; and all South Africans were affected by the war. Clearly then, no South African can be considered impartial.

 

But more importantly, at the time of the refusal by the trial judge to recuse himself, not only should the State have made urgent application to the SCA and/or CC; but also every Justice should have invoked their Oath of Office:– Constitution, Schedule 2 (6)(1) “I … swear/solemnly affirm, that as a Judge of the CC/SCA/HC, I will be faithful to the RSA, will uphold and protect the Constitution and human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law”.

 

Where then were all these Judges in the CC, SCA, HC when the media reported the refusal by the trial judge to recuse himself. The CC Justices argue extensively & conclude that they now can hear the appeal by the State; some 7 years after Basson was arrested, some 5 years after the recusal, and other issues, originally came up. Why did the Justices not “uphold the Constitution” with the “human rights entrenched in it” at that time – for either the Accused or the State or both? This should have been done at the time of arrest in 1997.

 

The Constitution is very clear in the oath – “administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law”.

 

The word “administer” means that there is a structure through which this can be given effect. The word “justice” means that there is a system through which it can be effected. The “Constitution” sets out the structures and systems, admittedly in broad terms, through which the judges can perform their duties to achieve these ends. Lastly, “law” follows, and is subordinate to the Constitution.

 

Unfortunately though; Judges may know “law”, but they clearly do not understand “systems”, nor do they “uphold and protect the Constitution and the human rights entrenched in it”. Consequently they do not, cannot, “administer justice”.

 

Sachs J raises the issue of war crimes and goes into great detail from Para 110 on. At closing (Para 126) Sachs J seems to suggest, regardless of the outcome of the Constitutional Court decision, that the accused could be tried as a war criminal on the same charges (that he was acquitted/quashed in a South African court) before a war crimes court. If this is so ???????????

 

Clearly these issues should have been decided before Basson was asked to plead – the Constitutional Court had at that time (of pleading) an experienced War Crimes Prosecutor, Justice Goldstone – there was nothing to prevent the State approaching the Constitutional Court for guidance on such issues, that is what S38 is all about, Enforcement of Rights.

 

But as stated earlier the commentary by Sachs J is emotive – stemming, understandably so, from his personal experiences during the struggle conflict.

 

The simplicity of this matter is lost in the complexity caused by partiality.

 

Again, the real question:- is this entire issue an error of judgement or a conscious abuse of power?

 

Regardless of the answer:-

Had the Justices correctly considered their recusal it would have become abundantly clear that the Constitutional Court had no jurisdiction. Because there would have been no Justices to sit to hear the matter; their only option was to refer it to an independent International Civil/War Crimes Court to determine the appealability.

 

The failure to correctly recuse by the CC Justices is being emulated in the High Courts & lower courts.

 

The failure by the CC Justices to bring the Skorpions, Asset Forfeiture Unit, SARS, & other State structures into line with the Constitution allow for these bodies to perpetrate gross abuses of power – engineered collapse of Tigon, Shawcell & others; cover up of Hefer (Ngcuka) & Myburgh (Rand collapse) Commissions; factional elements in the judiciary, etc. etc.

In truth; whether errors of judgement or conscious abuses of power by the Constitutional Court – other State bodies are freely engaging in abuses of power.

 

A simple ACID TEST: Try to establish if you have an outstanding traffic fine. Extremely difficult regardless of whether you have or not. But if you have and are stopped by a police officer in the middle of the night – you quickly find out – and get hauled off to free state accommodation.

 

A further negative, from the neglect of the Bill of Rights of both the Interim & Final Constitutions by the CC Justices, concerns the Boeremag trial. The trial is a result of an attempt (failed) by an Afrikaner group to destabilise the country. Their (Afrikaner) rights were ignored which resulted in frustrations. Traditional leaders (African) were fully & properly considered under the Constitutions. Not so the traditional Afrikaner. Repeated requests for their own homeland were denied.

 

What cost:-

for an Afrikaner homeland at distant Orania, where population is measured in dusty square-kilometres per person, monitored on a rotation basis by one UN police officer;

versus:-

the cost of the Boeremag trial, or the risk from frustrations?

 

Is there really any difference between a low-priced land claim at Orania to the recent high-priced land occupation at Nooitgedacht near Lanseria Airport - other than the price?

 

Moral, ethical, leadership is absent not only from government, but also from the business community and the religious loving-faiths. There is a clear need for those few leaders, with even a minimal degree of moral, ethical, values, in each of these communities to come together to bring about meaningful change, peacefully.

 

Meaningful change means developing governmental structures, systems & controls that allow for fairness, transparency, integrity, honesty.

 

The layman is currently disempowered from doing anything about this - because the Chief Justice has closed the Intellectual Doors of the Constitutional Court to the layman. Consequently the layman’s test for Recusation, and on other constitutional issues, can never be heard.

 

Asking a (non-layman) judge to apply a layman test is as pointless as asking an African what it’s like living in an igloo.

 

The Basson trial was botched from the beginning through many errors of judgement, these errors of judgement have progressively become conscious abuses of power. There is no justification in allowing further conscious abuses of power.

 

Were proper justice systems installed & correctly administered, then the abuses, that occurred then & are occurring now, would be avoided.

 

It’s time for the Constitutional Court Justices to start doing their jobs correctly according to the oaths that they have sworn/affirmed to, so as to bring about change to these deficiencies.

 

Sincerely

 

Chris Addington Pr.Eng.