Decision not to proceed with charges against Dr Wouter Basson undermines rule of law

“The Decision of the National Prosecuting Authority not to Proceed with Charges against Dr Wouter Basson undermines the rule of law in South Africa”, says Khulumani Support Group


Khulumani Support Group expresses its dismay at the decision of the National Prosecuting Authority not to proceed with a criminal case against Dr Wouter Basson, former Head of the Apartheid-government’s Chemical and Biological Weapons Programme. Dr Wouter Basson, dubbed Dr Death, is, in the words of Advocate Wim Trengrove, “one of the most-serious offenders of crimes committed under apartheid." 


Basson was a chemical and biological warfare expert who served in the South African National Defence Force (SANDF) during the apartheid era. South Africa's chemical and biological capability, set up under Basson, was one of the most advanced in the world at the time. Basson’s service to the SANDF was terminated in 1992 when he and 23 other generals were discharged from service.


Basson was first arrested in 1997 for crimes committed between 1979 and 1989. When his trial commenced in 1999, Basson was charged with 67 criminal counts. 18 of the counts related to murder, conspiracy, assault and intimidation; 24 to theft and fraud involving close to R46 million; and 3 to the possession of ecstacy. Some of the charges against Basson were dropped in the earlier stages of the trial, which lasted 31 months, because they were found to be out of the jurisdiction of the court because the crimes took place beyond the country’s borders. Others fell away because of a lack of evidence. The state spent millions on investigating the case. Prosecutors and a forensic auditor spent six years on the investigation, including travel to several countries. The cost to the SANDF of Basson's legal defence team, consisting of an attorney and two advocates, amounted to almost R10 million.


Basson was eventually acquitted in the Pretoria High Court in April 2002 on the remaining 46 charges - including murder, drug trafficking and fraud and theft involving some R37m. The charges of theft had never been proven and it was testified that a full investigation in 1992 involving the Chief of Defence, the Inspector-General, the Auditor-General and an external auditor had been satisfied that the money had been well-spent, apparently on the covert Project Coast. The apartheid government had then put everything related to Project Coast, including most of the official documentation, on to two planes and had dumped it into the sea. Without this equipment and documentation, and given that Basson is a self-confessed master of deception, it was very difficult to prove any wrongdoing against Basson. After the acquittal, the appeal process continued for another four years.


It was Basson’s acquittal that caused more anger than any other of the Truth and Reconciliation Commission’s controversial decisions about granting amnesty to apartheid killers and torturers. Basson in fact had never applied for amnesty to the TRC. He had deliberately flounted all mechanisms available for publicly acknowledging wrong-doing.

The State then applied to the Supreme Court of Appeal in Bloemfontein to appeal the case on the basis of the six charges related to alleged offences committed beyond South Africa's borders, that it believed were prosecutable. The SCA however dismissed this appeal, whereupon the NPA took the case to the Constitutional Court. The Constitutional Court then granted the State the right to proceed with a prosecution on these six charges related to conspiracy to murder "enemies" of the then-South African government, outside the borders of the country. All these actions qualifed as crimes against humanity and war crimes. They included conspiracies to poison Swapo refugees in Namibia with cholera in their water in 1989, and the killings of various high-ranking members of liberation movements in London, Mozambique and Swaziland, employing toxic substances and weapons, allegedly supplied by Basson. One of the charges involved the murder of about 200 members of the South West African People's Organisation in Namibia and the disposal of their bodies by dropping them into the sea from an aeroplane.


Victims followed with keen interest this ongoing saga and welcomed the permission granted by the Constitutional Court for the National Prosecuting Authority to proceed with a prosecution against Basson. The fact that the Constitutional Court made this finding was very important because it confirmed that Basson’s acquittal did not mean that he was innocent. In the court’s unanimous judgement, it had found that a "real and substantial" connection existed between South Africa and the alleged crimes committed elsewhere, and it gave the State permission to proceed with these six charges against Basson.


Yesterday’s (October 19, 2005) announcement that the NPA that it will not be proceeding with the case against Basson, is aggravated by the fact that Basson continues to show no remorse for his victims and their families. On hearing that the NPA had decided not to proceed with his re-prosecution, he apparently declared, "The point is that I'm innocent on the remaining six charges. I was dubbed the poison doctor and Doctor Death by stupid people and I will hopefully be left alone now. As far as I'm concerned, the case against me is buried and dead. The state is embarrassed, angry and sad because it couldn't do anything to me."


Khulumani believes that yesterday was not only a sad day for the State, but it is a “sad day for the credibility of the judicial system” (Tutu) While Basson expresses only concern about the action of the state against himself, he has not reckoned with the anger of victims who wish to remind him that he has blood on his hands. For his crimes against victims, involving the provision of the toxins used by agents to carry out political assassinations, Basson should in fact be facing life in prison.


Not holding to account the perpetrators for crimes against humanity, such as those perpetrated by Dr Wouter Basson, is a matter of grave, historical importance, not only to South Africans affected by Basson’s criminal activity, but also to global efforts to increase human security and to advance a global order based on respect for human rights and the consolidation of democracy across the world. It is for this reason that victims will continue to pursue avenues to hold accountable all those who have committed crimes against humanity, individuals and corporations.


"This (the Basson case) is not just another case; it is a very important case, because these are very, very serious charges, and this was one of the very few prosecutions that followed from the apartheid era in which a high-ranking military officer was accused of serious human rights violations", said Advocate Trengrove in his testimony before the Constitutional Court.


Khulumani Support Group is concerned that the failure of the NPA to proceed with this prosecution and its failure to prosecute and punish international crimes will undermine respect for the rule of law in South Africa and have long-term legal and political consequences for the country, especially given the reality that the South African judicial process, still has to “redeem and rehabilitate itself in the eyes of blacks" (Archbishop Tutu).


Khulumani Support Group therefore regrets the decision of the NPA. While criminals like Dr Wouter Basson may carry on with their lives in apparent complete disdain for the lives of those they have harmed, Archbishop Tutu reminds us that "fortunately, this is a moral universe. They can run, get away, but they can't hide forever. They have to live with themselves and the nemesis of the universe cannot be mocked forever" Khulumani Support Group joins Archbishop Tutu in this assertion and calls on government to end the disdain with which it seems to continue to treat victims, as if they no longer exist. These matters will, we believe, haunt our nations for decades to come, if we fail to address them now. Our government cannot claim that it is dealing with the claims of victims, when it ignores victims and directly acts against their best interests. Perpetrators such as Dr Wouter Basson have lost very little, while victims still have almost nothing to lose.


These matters will not simply disappear from peoples' memories. They are in fact deeply imprinted within peoples' memories. They cannot be laid to rest by simple declarations that the past has buried the past. The crimes committed under apartheid against victims in South Africa have to be atoned or we will bequeath a nation to our children and grandchildren charaterised by a loss of respect for the law.


Issued by Dr Marjorie Jobson

Chairperson, Board of Directors, Khulumani Support Group 082 268 0223