Constitutional Hill

Brett Kebble

What is Miss Jackie up to?

Oct 29th, 2009
by Pierre De Vos.
28 comments

What is Jackie Selebi up to? (I sommer call him “Ms Jackie” because of his child-bearing hips and his predilection for expensive Italian shoes….) Why is Selebi’s lawyer arguing today for the recusal of the judge sitting in his criminal trial when things have been going rather well for Selebi? What with the state’s star witness having admitted that he is a serial liar and having self-destructed on the witness stand, it is unclear why Selebi is complaining so bitterly about the alleged bias of Judge Meyer Joffe.

Usually counsel for the defense only bring such a drastic application for the recusal of a judge when all seems to be lost and when a conviction seems almost certain, so why this application now? I have not attended the trial, but if the newspaper reports are even remotely accurate, it is clear that Selebi’s application has no chance of succeeding. 

Of course, section 34 of the Constitution states that everyone has the right to have their dispute resolved in a fair public hearing before a court, while section 35 of the Constitution guarantees for every accused person the right to a fair trial which means the judge hearing the case must apply the law and assess the facts of the case impartially and without fear, favour or prejudice.

At the same time the Constitutional Court has stated that given the special training and experience of judges there is a presumption that the sitting judge will be impartial and fair and thus an applicant who alleges that a judge is biased must establish that. The Court also held that this presumption of impartiality and fairness will not be easily dislodged. Judges have a concomitant duty to sit in any case in which they are not obliged to recuse themselves so a judge cannot recuse him or herself merely because that would make things easier or because of an unproven fear by an accused or the state that the judge might be biased.

The test for recusal is as follows:

The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.

In the Wouter Basson case the state made an application for the judge to recuse himself but the rejection of that application suggests that Selebi will have no better luck in this case. (Ironically Selebi’s lawyer, who is arguing for the recusal of Judge Joffe in this case, was defending Basson at the time and opposed the State’s application for a recusal of Judge Willie Hartzenberg.)

In the Basson case the state claimed that during the trial Judge Hartzenberg had made remarks that gave rise to a reasonable apprehension of bias and that the legal rulings and factual findings made against the state by the judge were not only wrong, but were so unreasonable and one-sided as to give rise to a reasonable apprehension of bias.

In dealing with these issues the Constitutional Court cautioned as follows:

[T]his Court should bear in mind that in long criminal trials a judge may at times make remarks that are inappropriate, or display irritation towards counsel. At times such interventions may arise from attempts at humour. In considering the question of whether such remarks give rise to a reasonable apprehension of bias, a court should not hold a judge to an ideal standard which would be difficult to achieve.

Thus the fact that Harzenberg had complained that the state was conducting “a trial by ambush”, that he was “bored to death” by the state’s evidence, that counsel for the state was confused, that he had remarked that he had bruised the prosecutors ego, that he had laughed with counsel for the accused about the unsuccessful actions of the Assets Forfeiture Unit and that he had interfered with the cross examination of Basson did not establish, according to the Constitutional Court, a reasonable apprehension of bias required for a recusal order to have been granted.

The various mistakes of facts and law made by Hartzenberg J also did not convince the Constitutional Court that there was a reasonable apprehension of bias on the part of judge Hartzenberg.

This means that absent some new earth-shattering revelations about the alleged bias of Judge Joffe (secret tapes made by the National Intelligence Services, perhaps?), it is very difficult to imagine that the Selebi application will be successful.

Perhaps Selebi asked his legal counsel to bring this application because, not being a lawyer and being hard-headed, he really felt that the Judge was biased and thought there would be grounds for appeal if the judge did not recuse himself. Maybe he is just a difficult client who does not understand the law?

Or the defense is playing for time as it tries to secure additional evidence to discredit the state’s case? Or it is trying to intimidate the judge? Or it is stalling because it heard that the state is preparing to present bombshell evidence that will further tarnish the image and credibility of our former top-cop who, after all, was friends with Aglioti (“finish en klaar”) despite the fact that Agliotti is now emerging as one of the biggest charlatans and liars in the history of the criminal underworld in South Africa.

Whatever the reasons for this application, one thing is sure: thank goodness Ms Jackie is not our top cop anymore. Imagine having a commissioner of police who was either so stupid that he could not see that Agliotti was a crook or a liar, or was so “skelm” himself that he thought nothing of befriending a gangster and then allegedly taking hundreds of thousands of Rands from that gangster? The only person that must still be thinking that Ms Jackie was Police Commissioner Material must be our former President. But then again, he also never knew anyone who died of AIDS and thought no-one would ever be robbed walking to the SABC offices in Auckland Park. . .

Why is Jackie Selebi’s putting on such a curious defense?

Oct 6th, 2009
by Pierre De Vos.
126 comments

Jackie Selebi sure knows how to grab the headlines. He was at it again yesterday making all kinds of earth-shattering allegations that, if they were to be true, would rock South Africa and would further discredit the National Prosecuting Authority and two of its erstwhile bosses.

We do not know yet whether former Police Commissioner, Jackie Selebi, is guilty of corruption and defeating the ends of justice as alleged by the State. The State alleges that Selebi made R1.2-million from corrupt relationships with druglord Glen Agliotti, slain mining magnate Brett Kebble and former Hyundai boss Billy Rautenbach. We also do not know whether the claims by Selebi that both Bulelani Ngcuka and Vusi Pikoli pursued the case against him because they themselves are corrupt is true. That is for a court to decide.

However, the claim by Selebi that he was being prosecuted after discovering that Pikoli and his predecessor, Bulelani Ngcuka, had improper business dealings with dodgy businessmen, does (at least at first glance) seem curious from a legal perspective. Selebi made these allegations not in an attempt to have the case against him thrown out. In the light of the SCA judgment in the Zuma case that a prosecution does not become unlawful “merely” because charges were brought for an ulterior purpose – as long as the State brought the charges in order to secure a criminal conviction – this is a wise move.

But why is Selebi making these claims as part of his defence? Is he making a legal argument or is he rather playing a political game in order to garner sympathy by attacking two men who are rather unpopular with the crowd currently in charge of the country? It is difficult to say. 

In order to secure a conviction in the corruption case against Selebi, the State will have to convince the court beyond reasonable doubt that Selebi received the more than R1.2 million from the dodgy “businessmen”. It will then have to prove that Selebi did corrupt favours for these men and that there was a link between the payments and the favours, thus establishing Selebi’s intention to be part of the corruption.

In order to try and secure a conviction the state will call a very long list of witnesses. (See here and here.) The list does not include the name of Buleleni Ngcuka, but does include the name of Vusi Pikoli. One imagines that in order to stave off conviction Selebi will have to discredit a fair number of the witnesses that will come to testify about the R1.2 million allegedly received by Selebi and about the favours allegedly done by Selebi in return.

If the State has strong evidence – including documentary evidence – of the money allegedly received from the various criminals and underworld figures, then the case will probably turn on whether these payments could be linked to favours done by Selebi. The crux of such evidence may well have to be provided by witnesses who have concluded plea bargains with either Ngcuka or Pikoli.

I have no inside knowledge of the strategy employed by the defense, but from the available evidence it seems plausible that Selebi is attacking the credibility of Ngcuka and Pikoli not so much in an attempt merely to discredit them, but rather to try and undermine the credibility of the evidence provided by key witnesses who had concluded plea bargains with the state, including Glen Agliotti and Billy Rautenbach who will have first hand evidence of any favours  done by Selebi – if indeed favours were done.

The Selebi defense is therefore perhaps more astute than it seems. If the plea bargains can be attacked and the credibility of the witnesses who entered into such plea bargains can be destroyed, then Selebi might have a much better chance of being acquitted.

(As an aside, I am rather disappointed by Selebi for employing Advocate Jaap Cilliers SC to defend him. This shows a shocking disregard for the need to transform the legal system. How can talented black lawyers gain the necessary experience required to be elevated to the bench if criminal defendents like Selebi fail to employ them and choose instead to make use of the services of pale males. Is Selebi perhaps a victim of internalised racism and does he perhaps wrongly assume that a senior white man would provide him with a better defense than any of the many talented but less experienced black counterparts?  I am sure Advocates for Transformation and the Black Lawyers Association will shortly issue angry statements condemning Selebi for his racism. Besides, was Kemp J kemp to0 busy to take the case? Oops, for a moment there I forgot that President Jacob Zuma’s lawyer was also white.)

In any case, time will tell whether this strategy will work. Personally I am so confused by all the allegations and counter allegations in this case, that I have no clue which way it will go and whether either Selebi or the NPA will emerge vindicated or whether Selebi will manage to make his allegations stick.

On the one hand that great legal expert, Thabo Mbeki, claimed that he had not seen any credible evidence of any wrongdoing by Selebi and therefore could not suspend him – even after being fully briefed by Pikoli about the evidence against Selebi gathered by the State. On the other, a panel of eminent legal experts (admittedly perhaps not as well qualified as Mbeki in matters of criminality) who was asked to looked at the evidence by Mokotedhi Mpshe, concluded that there was a prima facie case against Selebi and that he should be prosecuted.  

Move over 7de Laan and Generations. The Selebi show is coming to town.

Questions for Chikane, Mbandla, Gumbi, Simelane, Mpshe and Mbeki

Jan 22nd, 2009
by Pierre De Vos.
88 comments

Sometimes the truth seems so blindingly obvious that one is tempted to believe that even our politicians would not be able to twist the facts to justify the indefensible – only to be reminded that politicians lie for a living and that the ordinary voter is often too lazy or stupid to care.

But let us consider this question, nevertheless: who should we believe?

Should we believe Vusi Pikoli, the man who even Frene Ginwala – old friend of Thabo Mbeki and disciplined member of the ANC – found to be a man of the highest integrity?

Or should we believe Brigitte Mbandla, the often tired and emotional ex-Minister of Justice, her Director General, Mr Simelane, who was caught lying before the Ginwala Commission, or Thabo Mbeki, a man who has a rather bizarre relationship to facts and the truth, or his Director General, Frank Chikane, who first made ringing statements about the deal struck with Adriaan Vlok before he went to the Ginwala Commission to denounce that very same deal when his boss decided a case had to be built against Pikoli?

Let us consider the evidence and probe a bit deeper into this obvious question. On the one side we have Vusi Pikoli, who told the Parliamentary Committee set up to rubber stamp the decision of President Kgalema Motlanthe to fire the National Director of Public Prosecutions (NDPP), that if the Scorpions had never investigated the murder of mining magnate Brett Kebble he would not now be suspended and required to defend himself before a parliamentary committee.

“If it had not been for the matter of Kebble I would not have this problem I am having today,” he said, adding that the decision to charge Selebi was the direct reason for his suspension. He also described as unlawful and unconstitutional an instruction from then justice minister Brigitte Mabandla that he halt the investigation of Selebi. He said both Mbeki and Mabandla had asked him to resign but he had refused as this would have allowed executive interference to triumph over the independence of the National Prosecuting Authority. “Because I refused to obey an unlawful instruction I was suspended.”

On the other hand we have the government, this time represented by the honourable Reverend Chikane who claimed yesterday that it was wrong to say that Mbeki had abused his power.

“I was there. The president did nothing to stop Pikoli from arresting Selebi.” Chikane said Mbeki had merely acted to manage any potential security fallout when he asked the head of the National Prosecuting Authority (NPA) to wait two weeks before arresting Selebi on corruption and fraud charges. “There was a great risk of something extraordinary happening to destabilise the country and it was the duty of the president to ensure the country was not destabilised.

On the face of it, the claim by Chikane cannot be squared with the claim by Pikoli. Unless, of course, Chikane had learnt a trick or two from his former boss and was twisting the truth in such a way that he could sooth his conscience while at the same time misleading the nation.

I will assume that Chikane is correct when he says that Mbeki did not order Pikoli to stop the arrest of Jackie Selebi. He did not phone his friend Selebi and asked him to come and arrest Pikoli, “finish and klaar”, because he was threatening national secuirity by having the audacity to want to arrest a friend of the President. But this does not mean that the President did not act in ways to indeed stop the arrest of Selebi.

When this case comes to court I would like to see Chikane, Mbeki, Mbandla, Gumbi and Simelane called to the stand and asked the following questions:

  • What is the relationship between Mbeki and Selebi? How long do they know each other? How much money did Brett Kebble give to the ANC? Did he give any money to Mbeki or any of his pet projects?
  • After it became clear that Pikoli was going to arrest Selebi, what did the President say to Chikane, Mbandla, Gumbi, Simelane or Mpshe about the case? Did he ask any of them (or anyone else) to take steps to ensure that Pikoli did not arrest Selebi before the Polokwane conference? If he did not, was it because he was momentarily dumbstruck or are those testifying just lying to protect their boss?
  • Why did Simelane write the letter illegally instructing Pikoli not to arrest Selebi and why did Mbandla sign it? Was there any link between this letter and anything the President or his staff told Simelane or Mbandla? If not, why has Simelane and Mbandla not been arrested by the police for this illegal interference with the NPA? Why were they not immediately fired by the President for issuing this illegal order?
  • If Mbeki did not do anything to stop the arrest of Pikoli, why was Pikoli suspended by the President on a public holiday and only a day before he was going to execute the warrant for Selebi’s arrest? 
  • If Mbeki, as his underlings and Ginwala have claimed, was concerned about the national security implications of Selebi’s arrest, and if Mbeki had not tried to stop that arrest, why on earth did he not try and stop the arrest? Surely, if there was really a national security concern and if he thought he had a duty to act to protect the country, then he would have made sure that Selebi would not be arrested – otherwise he would be in dereliction of his duties as President? Please explain this contradiction.
  • After Pikoli’s suspension and the appointment of Mokotedi Mpshe as NDPP, what was said by Mbeki, the Minister or anyone else to Mpshe about the arrest of Selebi? Who gave the instruction to Mpshe to cancell the arrest warrant? Surely it must have been on instructions from the President that this instruction was given – otherwise, how does one explain the involvement of Gumbi and Simelane in the drafting of the letter to request the cancellation of the arrest warrants? Or did these officials act without instructions from the President and if so, why have they not been fired?
  • Why did the Presidency give conflicting reasons for the suspension of Pikoli? Was it incompetence or was it because they discovered that the original reason for the suspension could not be justified, so they had to cook up some new reasons ex post facto? Either way, why were they not all fired for this dishonesty/incompetence? Was it because they were acting on instructions from Mbeki?
  • Even after he was fired as President, Mbeki maintained that he had not seen any evidence of wrongdoing by Selebi, despite the fact that Pikoli had provided the President with all the information he requested – the same information that prompted an indepndent panel of experts to conclude that a strong case exists against Selebi. So was Mbeki lying when he said repeatedly that he had not seen evidence to implicate Selebi? If he was not lying, what was he smoking at the time?

A skilfull cross-examiner will have a field day with all these witnesses and I will take a bet of R1000 with anyone that under cross-examination it would become clear that Mbeki and all his underlings are lying through their teeth about this matter. Pikoli was suspended because he wanted to arrest Selebi – finish and klaar.

Why Mbeki and his underlings are spreading these “deliberate falsehoods” are beyond me. If there was good reason to suspend and fire Pikoli to protect the national security, then surely Mbeki and his underlings should all be admitting that Mbeki suspended Pikoli to ensure that Selebi was not arrested because then Mbeki would just be doing his job.

The fact that they are all denying this blindingly obvious fact can only mean one thing: they are not telling us the truth. But parliament cannot afford to face this fact so Pikoli is toast.

Spurious case against Vusi Pikoli?

May 12th, 2008
by Pierre De Vos.
17 comments

The more I find out about the suspension of Vusi Pikoli, the more it seems as if the case presented to the Ginwala Commission is nothing more than an ex post facto fabrication to cover up the illegal and unconstitutional actions of the Minister and the President. Nothing shows this more clearly than the fact that the President has consistently lied to the nation about Jackie Selebi.

Shortly after losing the ANC Presidency at Polokwane in December last year, President Thabo Mbeki told reporters that he could not suspend National Police Commissioner Jackie Selebi because he knew nothing of any wrongdoing on the latters part.

“I have said this before, many times, that if there was anybody who has information that shows that National Commissioner Selebi has done wrong things, I would act on it. Nobody came to me,” Mbeki said.

Sadly, he was lying through his teeth. This is very clear if one peruses a letter which the National Director of Public Prosecutions, Vusi Pikoli, had sent to President Mbeki on 7 May 2007 – almost eight months previously – to inform the President of serious allegations that incriminated the Police Commissioner in bribery and corruption. The letter also stated that Pikoli intended to seek a search warrant to obtain information germain to the investigation against Selebi.

This letter – now available on the Internet – sets out in detail the train of events that led the NPA to investigate Selebi including the following rather incriminating facts:

  • When Jackie Slebi became aware that Glen Agliotti’s cell number appeared in the files of investigators into the murder of Brett Kebble, he phone Mr Agliotti in the presence of the investigators to warn him about this;

  • Phone records show many suspecious calls between Jackie Selebi and persons connected to Brett Kebble’s murder before, on the night and after the murder;

  • Glen Agliotti – who was suspected of drug smuggling and murder and has now plea bargained and confessed to the former – kept a diary which contains many references to meetings with one “Jackie”, referring to the Police Commissioner, and that he had phoned the police Commissioner more than 50 times;

  • Sources alleged that Selebi met with the three suspects in the Kebble murder case on several occasions to discuss progress (or lack thereof) with them;

  • Mr Agliotti – fearing for his life after his arrest for the murder of Brett Kebble – had offered to make a statement to the effect that he had had a generally corrupt relationship with Jackie Selebi for which Mr Selebi had received about R1 million;

  • That Mr Selebi was officially under investigation by the Scorpions in terms of section 28(1) of the NPA Act.

The President therefore knew by May 2007 about the extremely serious allegations against the Police Commissioner yet he claimed several times that no one had brought any information in this regard to him. He then suspended Pikoli four days after a warrant of arrest was issued for Selebi and his Minister is now trying to argue that he was merely acting in the national interest to protect national security.

But the NPA Act does not allow the President to suspend or fire the NPA boss except for misconduct, incapacity, or if he is not a fit and proper person anymore. The latter is a legal turn of phrase which denotes integrity and character. If Pikoli had obeyed the illegal and unconstitutional instruction by Justice Minister Brigitte Mabandla to stop his arrest of Selebi, he would have acted in a way that would have allowed for his suspension.

By refusing to do so, he showed exactly that he was indeed a fit and proper person and that he would rather obey the law and the Constitution than the Minsiter and the President.

When the President says in his letter to Minister Mabandla that he had constitutional duties regarding the National Commissioner of Police, he is merely stating the obvious, namely that he can appoint and also suspend the Police Commissioner. He himnself cannot decide whether the commissioner should be arrested or not. His letter seems to wrongly suggest that because the NPA prosecutes people on behalf of the state “represented by our duly elected government”, this government can interfere in decisions about prosecution – which it decidedly cannot do without facing the option of a 10 year prison sentence.

Unless dramatic evidence surface to show that Pikoli is involved in nefarious activities of his own or that he refused to provide the Minister with sufficient information about his actions, there is no way that the Ginwala Commission can make a recommendation that he should be fired.

So far the persons that seems to be candidates to be fired are not Pikoli but Mabandla and the President. I predict that when the history of this sorry saga is written, it will go down as yet another nail in the coffin of any reputation that President Mbeki might have had. First there was Aids, then his vilification of the “ultra left”, then his use of the Safety and Security Minister to nix his political opponents (Phosa, Sexwale etc), and now his protection of a man who seems deeply involved with a drug dealer and murder suspect.

What did we ever do to deserve such a deceitful and corrupt man as President? Or did the President act in this way because he once again thought he knew better than the professionals what the real story was (like he did on HIV/AIDS). No wonder a Jacob Zuma Presidency – based on collective leadership and acknowledgment of fallibility – looks a better option every day.

Kebble got value for donation says ANC

Jun 25th, 2007
by Pierre De Vos.
No comments yet
How brazen can you get? Now the ANC is arguing in court papers that it does not have to pay back the 3.5 million Rand that Brett Kebble donated to it. Kebble’s estate is trying to get back the money which they claimed were paid when he was insolvent. Business Day reports:

In his affidavit, Msimang said “donors receive value for the funds donated” through the “indirect benefit” that their companies operated in a political climate “which was borne through the gallant effort and contribution of the ANC”.

Msimang said that by donating to the ANC, Kebble was “maintaining an institution of democracy which (enabled) him to acquire his wealth, which in (turn), enabled him to operate his business in a democratic state free of racism, economic sanctions and free of all the negativity brought by (apartheid)”.

This argument is so preposterous, it could have been made up by The Onion. It is as if the ANC people are mocking themselves. It also seems to reflect – more darkly – the view that only the ANC can run South Africa and keep the peace and thus, by implication, that onmly the ANC has a right to rule the country.

I cannot imagine that the court would agree with this argument and then the ANC will have to pay back the money in any case. Why make such a fool of yourself if you know the chances of winning is very slim? The most obvious answer is that one makes such answers if one is exctremely arrogant and does not really care what people think. Or maybe more correctly, one does not care what the chattering classes think who actually read newspapers.