Dr Wouter Basson, a former employee of the South African National Defence Force and head of the Civil Co-operation Bureau, was charged in the High Court with 67 counts including murder, conspiracy, fraud and drug-related offences allegedly committed before 1994. During the trial, the High Court (Hartzenberg J) ruled that a bail record from earlier proceedings was inadmissible, upheld objections to six conspiracy charges under section 18(2) of the Riotous Assemblies Act on the basis that the provision did not apply to conspiracies to commit crimes outside South Africa, and refused an application by the State for his recusal. After a lengthy trial, Basson was acquitted on all remaining charges in April 2002. The State sought to reserve questions of law for consideration by the Supreme Court of Appeal (SCA) under section 319 of the Criminal Procedure Act and alternatively sought leave to appeal on constitutional grounds. The SCA struck the reserved questions from the roll, holding that they raised issues of fact, not law, refused condonation for procedural defects, and dismissed the State’s applications. The State then applied to the Constitutional Court for special leave to appeal and for leave to appeal directly against the High Court’s acquittal.
The applications for special leave to appeal against the judgment of the Supreme Court of Appeal and for leave to appeal directly to the Constitutional Court were dismissed. The acquittal of Dr Wouter Basson remained final.
The case is significant for clarifying the constitutional status of judicial recusal, affirming that both the State and the accused are entitled to an impartial court, and delineating the limits of appellate intervention in criminal acquittals. It underscores the Constitutional Court’s cautious approach to reopening concluded criminal trials, particularly in light of the rights to finality, protection against double jeopardy, and trial without unreasonable delay. The judgment also clarifies the interaction between section 319 of the Criminal Procedure Act and constitutional jurisdiction.