Law, War and the TRC | The Wouter Basson Case

Dr Wouter Basson, referred to in the press as Doctor Death, was prosecuted for serious war crimes he had allegedly committed as head of South Africa's chemical and biological warfare unit in Namibia. The trial judge struck down the charges against him on the basis that he could not be charged in a South African court for a conspiracy to commit a crime in Namibia. The State appealed to the Supreme Court of Appeal, which declined to hear the matter because the papers from the State were lodged out of time. On further appeal to the Constitutional Court, two of the issues were whether the case raised a constitutional matter, and if it did so, should the Constitutional Court interfere with a procedural discretion that had been exercised by the SCA? In a separate judgment, Justice Sachs, emphasised that the more heinous the charges, the more important it was that he received a fair trial. Nevertheless, the alleged commission of war crimes most certainly raised a constitutional issue and that the SCA's discretion had been wrongly exercised in giving more weight to a procedural technicality than to the gravity of the offences. Justice Sachs discusses the context of a rebuke he received from colleagues for saying in open Court to Dr Basson: ‘You are a liar, you say so yourself,’ explaining that the rebuke was justified but that he did not regret making it.