The State v Wouter Basson

Dr Wouter Basson, an employee of the South African National Defence Force, was charged in 1999 on 67 counts including murder, fraud, conspiracy to commit various crimes and drug offences, allegedly committed before 1994 while working in the Civil Co-operation Bureau. During the trial, the trial judge quashed six charges based on section 18(2) of the Riotous Assemblies Act, holding that this provision did not criminalise conspiracies entered into in South Africa to commit crimes beyond South Africa's borders. The trial judge also ruled that the bail record was inadmissible in evidence. Early in the trial, the state applied for the trial judge to recuse himself on grounds of bias, which was refused. In April 2002, Basson was acquitted on all remaining charges. The state sought to reserve questions of law under section 319 of the Criminal Procedure Act for consideration by the SCA. The High Court reserved one question, and conditionally reserved three others (including questions on recusal, admissibility of the bail record, and the quashing of charges). The SCA struck all reserved questions from the roll, holding inter alia that the recusal and bail record admissibility issues raised questions of fact, not law, and therefore could not be reserved under section 319. The state then applied to the Constitutional Court for special leave to appeal under rule 20, and for direct leave to appeal under rule 18.

• Whether the application for special leave to appeal raises constitutional matters within the jurisdiction of the Constitutional Court
• Whether decisions on judicial recusal raise questions of law or fact for purposes of section 319 of the Criminal Procedure Act
• Whether decisions on admissibility of evidence raise questions of law or fact for purposes of section 319
• Whether the interpretation of section 319 of the Criminal Procedure Act raises a constitutional matter
• Whether the quashing of charges relating to alleged war crimes raises a constitutional matter
• The relevance of South Africa's international law obligations to the interpretation of domestic criminal law
• Whether it is in the interests of justice to grant leave to appeal
• The application of the double jeopardy prohibition in section 35(3)(m) of the Constitution
• The application of the right to trial without unreasonable delay in section 35(3)(d) of the Constitution
• Whether the state has a right to an impartial judge and fair trial in criminal proceedings

The application for leave to appeal directly to the Constitutional Court against the judgment of the High Court in terms of rule 18 was dismissed. The Court declared that the grounds of appeal upon which the rule 20 application is based all raise constitutional matters or issues connected with decisions on constitutional matters for purposes of section 167(3)(b) of the Constitution. The matter was not finally disposed of; further directions were to be given by the Chief Justice for the further disposal of the matter, including consideration of whether it is in the interests of justice to grant special leave to appeal.

The binding legal principles established are: (1) Judicial recusal is a constitutional matter within the jurisdiction of the Constitutional Court because impartial adjudication is a cornerstone of a fair legal system, required by sections 34 and 165(2) of the Constitution. (2) The determination of whether a reasonable person would reasonably apprehend bias by a judicial officer involves applying an objective legal standard (the reasonable person test) to established facts. This constitutes a normative evaluation and raises a question of law, not merely a question of fact. (3) Determinations of admissibility of evidence involve a two-stage process: first, determining the facts; second, measuring those facts against a legal test (such as fairness). The second stage raises a question of law. (4) The state, when prosecuting crime on behalf of all citizens, has a right to an impartial judge and fair trial, and may challenge actual or perceived judicial bias. (5) The interpretation of section 319 of the Criminal Procedure Act raises a constitutional matter because it concerns the nature and ambit of the powers of the SCA, which are derived from the Constitution. (6) The quashing of criminal charges can raise a constitutional matter where it impedes the state's constitutional obligation to prosecute offences that protect fundamental rights, particularly where the alleged offences may constitute war crimes and South Africa has international law obligations to prosecute such crimes. (7) Issues concerning whether courts have given effect to South Africa's international law obligations as mandated by sections 232 and 233 of the Constitution raise constitutional questions properly before the Constitutional Court. (8) Customary international humanitarian law, including the duty to prosecute war crimes, forms part of South African law by virtue of section 232 of the Constitution unless inconsistent with the Constitution or an Act of Parliament. (9) It is undesirable and not in the interests of justice to permit a litigant who has pursued an appeal to the SCA to thereafter seek direct leave to appeal to the Constitutional Court on the same issues under rule 18 merely to rectify perceived shortcomings in the initial appeal.

The Court made several significant obiter observations: (1) The Court noted that determining whether a retrial following a successful appeal would violate the prohibition on double jeopardy in section 35(3)(m) or the right to trial without unreasonable delay in section 35(3)(d) would raise complex constitutional issues that would need to be determined at the appropriate stage by the trial court, but these factors were not determinative of the interests of justice at this preliminary stage. (2) The Court observed that not all cases concerning the quashing of charges will necessarily raise constitutional matters; where charges are quashed for technical reasons (such as lack of sufficient particularity under section 85(1)(d)), no constitutional issue will arise. (3) The Court emphasized that the Constitution cannot retrospectively make lawful what was formerly unlawful, or vice versa, following Du Plessis v De Klerk. (4) The Court noted that the mere fact that a criminal case threatens an accused's liberty does not make it a constitutional matter, following S v Boesak. (5) Sachs J observed that when allegations of war crimes are at issue, it is particularly important that judicial and prosecutorial functions be undertaken with rigorous respect for constitutional rights, as the effective prosecution of war crimes and the rights of the accused to a fair trial both stem from the same constitutional foundation of upholding the rule of law and principles of human dignity, equality and freedom. (6) Sachs J emphasized the need for objectivity and rigour when dealing with the enormity of legal issues concerning war crimes, noting that law 'filters and rarefies the halo of horror and suffering surrounding crimes.' (7) Chaskalson CJ observed that where enforcement of previously acquired rights would, in light of present constitutional values, be grossly unjust and abhorrent, special considerations may apply, whether as being contrary to public policy or on some other basis. (8) The Court noted that whether section 168(3) of the Constitution, which provides that the SCA 'may decide appeals in any matter,' is relevant to the construction of section 319 of the Criminal Procedure Act is a constitutional issue, though this was not definitively determined. (9) Several judges noted that the question of the relevance of international law to the interpretation of section 18(2) of the Riotous Assemblies Act raised complex issues that were better left for determination at a later stage.

This case is significant for establishing important principles in South African constitutional and criminal procedure law: (1) It confirmed that judicial recusal is a constitutional matter falling within this Court's jurisdiction. (2) It established that determining whether a reasonable person would apprehend bias involves applying an objective legal standard and therefore raises a question of law, not merely fact. (3) It clarified that determinations of admissibility of evidence, insofar as they involve applying a legal test of fairness to established facts, raise questions of law. (4) It affirmed that the state has a right to an impartial judge and fair trial in criminal proceedings, and may challenge judicial bias. (5) It recognized that the state's constitutional obligation to prosecute offences protecting fundamental rights is a significant constitutional consideration, particularly where war crimes and international law obligations are involved. (6) It held that issues concerning the interpretation of section 319 of the Criminal Procedure Act and the powers of the SCA raise constitutional matters because the powers of courts are derived from the Constitution. (7) It established that South Africa's international law obligations, particularly regarding war crimes and humanitarian law, are relevant to constitutional interpretation and the interpretation of domestic criminal law. (8) It confirmed the Court's broad jurisdiction over constitutional matters and issues connected with constitutional matters, while emphasizing the need for rigorous analysis to determine jurisdiction. (9) It reinforced that applications for leave to appeal will not be granted merely to give a litigant a second opportunity after an unsuccessful appeal to another court. The case is also significant for its context: it concerned allegations of serious crimes committed during the apartheid era, including alleged war crimes, and raised profound questions about accountability, transitional justice, and the rule of law in South Africa's constitutional democracy.