Constitutional Hill

Jackie Selebi

Jackie Selebi is finish and klaar

Dec 3rd, 2011
by Pierre De Vos.
150 comments

We definitely live in a strange place (as Bernoldus Niemand sang in “Reggae Vibes is Cool”). This is a society in which somebody was found guilty of bribing the President of the country, but the President was never prosecuted for being bribed; one in which the Police Commissioner is sent to prison for being corrupted by a really slick crook, but that crook (allegedly also involved in the “assisted suicide of another businessman-crook) never received a jail term; a society in which a former President fired the head of the prosecuting authority after he wanted to arrest the very Police Commissioner (now facing 15 years in jail for corruption) before that head of the prosecuting authority was himself fired for “undermining national security” by wanting to arrest the very Police Commissioner who showed a National Intelligence Estimate (NIE) prepared for the President to the very crook who bribed the Police Commissioner.

Today, in the judgment of Selebi v S, 5 judges of the Supreme Court of Appeal (SCA) confirmed that former Police Commissioner Jackie Selebi (the very Selebi who showed the NIE to Glen Agliotti after Agliotti had given him money) is guilty of corruption in terms of section  4(1)(a)(i)(bb) of the Prevention and Combating of Corrupt Activities Act  which states that:

Any public officer who . . . accepts . . . any gratification from any other person . . . in order to act, . . . in a manner that amounts to the . . . misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation; . . . is guilty of the offence of corrupt activities relating to public officers.

In the main judgment, Deputy President of the SCA (Mr Justice Khayelihle Kenneth Mthiyane) pointed out that leave to appeal was only granted to consider two issues. First, the court had to decide whether the High Court was correct when it found that the state has proven beyond reasonable doubt that Mr Selebi had received payment from Agliotti. Second, it had to consider the question whether the State has proven that Selebi has provided Agliotti with any favours as a result of money paid by him to Selebi.

All the judges agreed that the State had indeed done so.

It is clear that Mr Selebi’s legal strategy hinged on denying that he ever received any money or other favours from Agliotti. This was a high risk strategy because once the court found that money did change hands and favours were done, it inevitably led to the conclusion that Selebi had a corrupt intention when he received the money, This is so because Mr Selebi had admitted during his testimony that he believed Agliotti was a “hustler” and that if a “hustler” like Agliotti gave him anything he would immediately know that it was for an illegal purpose. He added that if Agliotti made any payment to him he would know that he intended to induce him to afford him some favours in one way or another.

This strategy might have worked if all the state had to rely on was the testimony of Mr Agliotti, who was found by the court not to be a credible witness. Unfortunately for Mr Selebi, the state provided ample corroborating evidence of payments made and benefits given by Mr Agliotti to Selebi and where it did the court found that there was sufficient evidence to find that payments were indeed made.

The corroborating evidence included that of Agliotti’s former girlfriend Dianne Muller who was found to have been an impressive witness. The “bizarre spending patterns” of Mr Selebi, which showed that for several months he hardly spent any of his salary, also added corroboration.

Most damning for Mr Selebi was perhaps the finding that he had shown a National Intelligence Estimate (NIE report) to Agliotti. The court found that Selebi shared this information with Agliotti to enable Agliotti and the Kebbles to take steps to protect themselves. Accordingly, the portion of the NIE document was shown to Agliotti for the benefit of Agliotti and the Kebbles. The fact that Selebi had admitted to showing a document to Agliotti provides, in itself, corroboration for Agliotti’s evidence that Selebi.

In a separate concurring judgment Suretta Snyders emphasised that the trial court, faced with the absence of reliable, detailed evidence from Agliotti, “exercised what can only be described as extreme caution and only convicted the appellant on the basis of a few payments for which clear corroboration existed” and continued:

Insofar as the general corroboration relied on by the trial court is concerned, I am of the view that the trial court, in applying the rules of caution and seeking corroboration, was benevolent to the appellant and preferred to refrain from convicting the appellant in relation to a specific payment when the faintest doubt was raised. Thus the appellant was not convicted in relation to four more cheques that reflected inscriptions that could be interpreted as references to the appellant.

Snyders, in concluding that the relationship between Agliotti and Selebi was neither a pure friendship or a professional one concluded that:

One does not expect the National Commissioner of Police to take his friend along on police business; to take his friend and informer along to the very meeting where the verification of the informer’s information is to take place; to meet his friend to shop together during office hours; to favour his friend by attending to minor complaints for which structures exist to be dealt with; and to divulge information regarding police operations to his friend’s friends. If the relationship was so close to have made these occurrences ordinary, one would have expected it to spill over to the families of the appellant and Agliotti, which did not happen.

How did the appellant explain this unusual relationship? It was repeatedly put to state witnesses on his behalf that he had an innocent friendship with Agliotti. I have already illustrated that to have been highly improbable, to the point of being unbelievable. During his own evidence, however, the appellant dramatically changed this version and described the relationship as one between informer and handler. This explanation is equally inherently improbable. Their relationship was a public one. Agliotti was previously, from the beginning of 2002 for a period of one year, registered as a police informer and had an official handler, not the appellant. He lost that status within a year and was deregistered as an informer. The appellant’s mendacity in this regard, dealt with extensively by the trial court, is yet another indication that the relationship between them was extraordinary, not one of friendship, nor one between informer and handler.

The appeal did not deal with constitutional issues dealing with allegations that the trial judge had to recuse himself and that conduct by the prosecutors had rendered the trial unfair as no leave to appeal the findings of the trial court on these matters were granted by the trial court or the SCA. This will make an appeal to the Constitutional Court more difficult (if not impossible) to sustain. In S v Boesak the Constitutional Court found that:

A challenge to a decision of the SCA on the basis only that it is wrong on the facts is not a constitutional matter. In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory. There is a need for finality in criminal matters. The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises. Disagreement with the SCA’s assessment of the facts is not sufficient to constitute a breach of the right to a fair trial. An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.

Unless the Constitutional Court is prepared to entertain the arguments of Mr Selebi’s lawyers that he did not have a fair trial — something explicitly rejected by the trial court and which the SCA refused even to entertain — this is the end of the road for Mr Selebi.

This case is remarkable in many ways. It has demonstrated that even the South African Police Commissioner was corruptible and dented trust in the police. Nevertheless, at the same time it is remarkable that the Police Commissioner was successfully prosecuted — something that would happen in very few countries in the world as it is notoriously difficult to investigate and prosecute members of the police leadership who usually have the resources to derail any such investigation. It would never have happened in the absence of the Scorpions, a relatively independent corruption fighting unit situated in the Prosecuting Authority.

It is also remarkable that the Police Commissioner will now spend time behind bars while the person who bribed him will not — despite the fact that he was not a truthful witness and never received indemnity from prosecution. There might be good reasons why the Scorpions went after Selebi and in effect let Agliotti off the hook (who was later unsuccessfully prosecuted for his alleged involvement in the Kebble murder while those who confessed to having committed the murder were granted indemnity). This would be that a crooked head cop subverts the law and undermines respect for the Rule of Law in a way that the actions of an ordinary gangster could never do. But it does leave a bad aftertaste that Selebi is going to jail while Agliotti is a free man.

Lastly, the case is remarkable because it once again reminds us of the mendacity of former President Thabo Mbeki and his strange behaviour around the Selebi matter. On 9 November 2006, then President Mbeki wrote a letter to Pieter Groenewald, in which he stated that:

Up to now nobody within the state structures has informed me that there are any investigations affecting National Commissioner Selebi that are being conducted by anybody, including the DSO, (the Scorpions). I am certain that if there was such an investigation, or such an investigation was contemplated, I would have been informed accordingly. In this regard. I must emphasise that if any of our law enforcement or intelligence agencies felt that they had information that justified such an investigation, I would encourage them to do their work without let or hindrance, in keeping with their legal mandate….I have the greatest confidence in National Commissioner Selebi. I am certain that whatever the rumour mill is saying about him, he will continue to do his critically important work with the same diligence, dedication and selflessness he has shown ever since we appointed him as National Commissioner of the SAPS.

As I noted before, it is not clear how this claim could have been true. As the Ginwala Enquiry Report found:

It is not disputed that Adv Pikoli met with the Minister and briefed her on the investigation into the National Commissioner of Police on 13 separate occasions: In March 2006, in August 2006, on 9 November 2006 [the very day Mbeki wrote the letter], on 16 November 2006, on 11 March 2007, on 13 March 2007, on 17 March 2007, on 28 March 2007, on 8 May 2007, on 25 June 2007, on 11 September 2007, on 18 September 2007 and on 23 September 2007. Following these meetings he furnished the Minister with two written reports on 19 March 2007 and 19 September 2007.

It is also common cause that Adv. Pikoli met and briefed the President on the investigation against the National Commissioner of Police on 10 occasions: In March 2006, in August 2006, on 9 or 10 November 2006, on 14 November 2006, on 20 November 2006, on 11 March 2007, on 9 May 2007, on 20 May 2007, on 15 September 2007 and on 16 September 2007. The evidence is that he gave the President written reports on 7 May 2007 and 16 September 2007.

The SCA’s confirmation of the conviction of Selebi — based on some of the evidence provided to President Mbeki at the time, which he claimed never to have seen  — thus underlines once again that for some reason unknown to us the former President had not believed the information provided to him (unlike the High Court and the SCA who found that it proved Selebi’s guilt beyond reasonable doubt) and had then misled the public about receiving any such information. Why he did this, will probably remain the biggest mystery of this sad saga.

Why the Hawks?

Aug 14th, 2010
by Pierre De Vos.
43 comments

Last week members of the Directorate for Priority Crime Investigation (also known as the Hawks) swooped on the offices of the Sunday Times and arrested Mzilikazi wa Africa. Reports suggest that he was arrested for fraud, uttering and defeating the ends of justice for being in possession of a letter purporting to be a resignation letter from the Premier of Mpumalanga. This was already rather odd and disturbing, as being in possession of a fraudulent letter does not constitute a criminal offense.

But throughout the affair something else has been bothering me. Why would the Hawks investigate a matter of fraud and defeating the ends of justice against anyone? Remember, the Hawks was created after the tenderpreneurs like Brett Kebble, the fraudsters like Jackie Selebi, and the politicians like Jacob Zuma and Ngoako Ramatlhodi (who were both targeted by the Scorpions for allegedly being involved in corruption) got their way to abolish that unit.

According to the South African Police Services Act, the Hawks is empowered to investigate “priority crimes”. The Act defines “priority crimes” as “organised crime, crime that requires national prevention or investigation, or crime which requires specialized skills in the prevention and investigation thereof”. It is far from clear that being in possession of a forged letter (which, as I have noted above, is not a criminal offense in our law) would constitute a priority crime as defined by section 17A of the Act.

If a crime was committed at all, it is clearly not an organised crime to possess a forged letter of resignation or even to be involved in the forging of that letter. This is also not an alleged crime that requires national prevention as it is not part of a larger network of crimes that are so embedded in our society and so endemic that ordinary members of the police cannot deal with it because of the sheer scope of the criminality across the country.

It is also rather difficult to see how one would be able to argue that the alleged crime requires specialised skills to investigate. One surely does not need specialised skills as a police unit to read a fraudulent letter and distil its meaning, to trace the origins of the letter by asking Telkom where the fax machine from which the letter was faxed was situated, to impound the relevant computer equipment, and to get experts to analyse the computer equipment to see if the letter was written on a specific computer.

Unless the ability of ordinary police officers to investigate crime is so catastrophically absent as to make them utterly useless, one would be hard pressed to claim that this was a crime requiring specialised skills to investigate. This case therefore does not seem like a “priority crime” at all.

Does this mean the Hawks illegally got involved in the investigation of this alleged crime and the arrest of Wa Africa? Maybe it did, but then maybe it did not.

Section 17D(1)(a) of the South African Police Services Act states that the Hawks can usually only investigate priority crimes. However, section 17D(1)(b) of the same Act states that the Hawks can also investigate “any other offence or category of offences referred to it from time to time by the National Commissioner”.

Ahhh, I hear you say, so the National Commissioner could have asked the Hawks to investigate this pressing matter of a journalist being in possession of a fraudulent letter. Good on our Police Commissioner for being so on top of his job and being so diligent and eager to address the terrible problem of fraudulent resignation letters that is eating away – like a cancer, I tell you –  at the very heart of our democracy!

There is only a small little problem with this kind of analysis. The problem is that the National Commissioner is Bheki Cele, the same Bheki Cele whom Wa Africa had reported on in the previous week’s issue of the Sunday Times for signing some document which might or might not have been a lease for the renting of a building – without the tender for that lease being issued as required by the law. Wa Africa had therefore co-authored a newspaper story which implicated Cele in alleged corrupt activities and a week later the Hawks arrested him. This is a rather surprising coincidence, to say the least.

Does this mean that after the Sunday Times published the story suggesting that Cele was involved in corrupt activity, Bheki Cele (with disturbing images of his predecessor, Jackie Selebi, being sent to prison for 15 years for corruption fresh in his mind) pro-actively decided to teach this journalist a lesson and ordered the Hawks to investigate and arrest Wa Africa for being in possession of a fraudulent letter (which, I repeat, is not normally a criminal offence)?

So, at least two distinct but perhaps interrelated questions arise. First, does it mean that there is more to the Sunday Times story than we know and that the Police Commissioner is a thoroughly corrupt man (following in the proud footsteps of his predecessor) and that he may have received some money or other benefits for signing off on the lease of a new Police Headquarters building? Second, did the Police Commissioner abuse the power bestowed on him by the Act by ordering the Hawks to arrest the journalist who had gotten too close to the truth on his corrupt activities?

Of course, these are questions – not assertions. Although this whole story smells very messy, we do not have enough information to know what really happened here.

Yet, a third question does, of course, also arise. If the Police Commissioner was indeed corrupt (hey, it has happened before, but I am not claiming at this stage that I believe he is) and if he is the one who can order the Hawks to investigate (and one presumes also not to investigate) certain crimes, does this mean that we will never really know about the Police Commissioner’s alleged illegal activities? Who will investigate any credible evidence of corruption against the Police Commissioner now that the Scorpions have been abolished? (The Sunday Times story is not very clear, so it is not possible to say from the available evidence whether credible evidence of corruption by the Commissioner actually exists.)

Testimony at the Glen Agliotti trial suggests that Brett Kebble and other crooks were paying the then Police Commissioner and now convicted fraudster, Jackie Selebi, (and who knows who else in the ANC?) to make sure that the Scorpions would be killed off. They did this because they feared the Scorpions. They feared the Scorpions because it sometimes actually did its work properly and was at arms length from the police, whose commissioner was a crook, could therefore be bought, and could therefore make investigations go away.

Can any reasonable person still argue that abolishing the Scorpions was not done – at least, in part – for an ulterior purpose? I would like to hear from that lone voices (the usual suspects who never fail to take a gallant stab at defending the indefensible) who will be prepared to argue that ulterior motives had nothing to do with the demise of the Scorpions. If anyone can convince me of that, he or she could probably convince any parent to send their ten year old son on a one month camping trip in the wild with a group of Catholic Priests.

Somewhere in the wild, wild, East

Aug 5th, 2010
by Pierre De Vos.
209 comments

In 1963, the apartheid Parliament rushed through the General Laws Amendment Act, Number 37 of 1963. The Act applied retroactively to June 27th 1962 and was mainly aimed at ensuring that the ANC leaders arrested at Lilliesleaf Farm in Rivonia could be held in detention indefinitely or until they could be charged.

Under this General Law Amendment Act, the security police, also known as the Special Branch, were given the authority to arrest anyone they suspected of being engaged or involved in any act against the State and to hold them incommunicado for 90 days at a time. The Act was often used to detain people for longer periods. Detainees would be “released” for a few seconds before they were “re-arrested” and detained for another 90 days.

When this process of being released and then re-arrested proved to be too cumbersome, the government introduced and passed the 180-Day Detention Act (the Criminal Procedure Amendment Act, Number 96 of 1965). Eventually, this 180-day law would be replaced yet again by the Terrorism Act, Number 83 of 1967, which allowed the government to detain individuals indefinitely until all questions had been answered satisfactorily or no further purpose could be achieved by holding the detainees.

Thankfully, section 12(1)(b) of the South African Constitution now prohibits anyone from being detained without trial. We do not live in apartheid South Africa anymore and we all have rights now. The police are not allowed to detain or torture us. This means, as a general rule, a detained person must be charged or released at his or her first appearance in court. In terms of section 35 of the Bill of Rights (read with section 50 of the Criminal Procedure Act) if no charge is brought, the person must be released or may “be informed of the reason for his or her further detention”.

This implies that the Bill of Rights does allows for an unspecified period of detention of uncharged detainees – but only in the most exceptional circumstances. Where a terror suspect who might have planned blowing up the Union Building or assassinating the President, is arrested and charges are still being investigated against that suspect, he might be detained. However, the detained person retains the right to bail and the right to challenge the lawfulness of the detention. This will entitle a person to approach a court at any time to apply for trial or contest the lawfulness of the detention. Where prosecutors determine that there is no case against a detained person, it is illegal to continue detaining that person.

In the light of the above, the arrest and (at the time of writing) continued detention of Sunday Times journalist Mzilikazi wa Afrika seem quite shocking. The arrest and detention (somewhere in Mpumalanga) of wa Africa raise many serious questions about the commitment of the current government to uphold the rights of citizens and the possible abuse of the police to cover up corruption and intimidate the media.

At this point, one does not have sufficient information to know for certain that wa Africa is being held illegally in detention without trial – as alleged by the Sunday Times in a statement posted on heir website – and whether the Hawks have unlawfully arrested him for an ulterior purpose. Whether he is a thoroughly bad man who will one day be convicted of the most despicable crimes, or whether he is an innocent victim of the most flagrant abuse of state power, is not yet known.

Nevertheless, the fact that wa Africa co-wrote an article alleging that Police Commissioner Bheki Cele (what is it with South African Police Commissioners and the law?) signed a R500 million lease for the Police to rent a new building without following tender procedures, must make every reasonable South African very suspicious indeed. This ongoing saga raises several serious and disturbing questions.

Is it true – as reported by the media – that wa Africa was arrested for fraud because he was in possession of a fabricated letter – faxed to the Sunday Times – purporting to show that the Premier of Mpumalanga intended to resign? If this is the case, then wa Africa should never have been arrested as it is not a crime in South Africa to be in possession of a fraudulent letter.

Is it true – once again as reported in the media – that this morning prosecutors met with wa Africa’s lawyers and the prosecutors decided that he had no case to answer, but that the police then refused to release him? Is it further true that the police “held further discussions” with the prosecutors, who then decided to charge him after all? If this is so, why would prosecutors who had decided there was no case to answer change their minds? Was there unlawful interference in the work of the NPA and was unlawful pressure placed on prosecutors to have wa Africa prosecuted despite the fact that they do not believe that he has a case to answer.

Why was wa Africa arrested at all and why, at the time of writing, is he still being detained? It is extremely unusual for a suspect in an ordinary fraud case who has arranged with police to meet with them and who poses no flight risk and no immediate risk to the community, to be arrested and detained for two days without appearing in court. On the available evidence, at the very least, this arrest appears unnecessarily high-handed.

Is it pure co-incidence that wa Africa was arrested in this high-handed and seemingly unnecessary manner a day after the Police Commissioner Bheki Cele referred to him as a “very shady journalist” for co-writing the article in which it was hinted that Cele is corrupt? Even more bizarrely, this happened in the same week in which the previous police commissioner was sentenced to 15 years imprisonment for corruption. Someone a bit more suspicious than myself might wonder whether Cele had learnt his lesson from Selebi and was taking pre-emptive measures to avoid Selebi’s fate.

Hopefully, all these questions will be answered in a satisfactorily manner and it will turn out that the justifiable fears raised by the arrest and the subsequent detention of wa Africa were entirely misplaced. For the sake of our country and our future, I sincerely hope that this is the case. It would be rather scary once again to live in a country where the police does not act in terms of the law and where individuals who are critical of the state can be detained without trial.

To be honest, for the first time since we became free in 1994, I am running a bit scared.

More questions for Mbeki on Selebi

Aug 4th, 2010
by Pierre De Vos.
86 comments

When former US President Bill Clinton was confronted with allegations that he had sex in the Oval Office with the White House intern, Monica Lewinski, he went on national television and with his lower lip quivering (he can do that quivering-with-indignation-and-selfrighteousness look better than most politicians), he declared: “I did not have sexual relations with that woman”.

It turned out that this was a bare-faced lie. The American public forgave Clinton, perhaps because he lied about a personal matter and not – like Richard Nixon before him – about serious matters of state. Or perhaps the public forgave Clinton because the US economy was booming. Despite this, Clinton’s historical legacy will always remain tainted by the telling of this blatant lie – communicated with so much conviction that even his wife (who should have known better) claimed to have believed him.

Will South Africans, similarly, forgive former President Thabo Mbeki and even if they did, will his historical legacy always be tainted by evidence of, and allegations about, his mendacity? The sad fact is, the more we learn about Mbeki’s role in the Jackie Selebi case, the more we are confronted with unpalatable evidence that former President Mbeki was not a person with a strong and abiding commitment to the truth.

Selebi has now been convicted and sentenced for corruption. However, it is unclear whether the full truth about the events surrounding the Selebi case - including the events that led to the suspension of former National Director of Public Prosecutions, Vusi Pikoli after he issued an arrest warrant for Selebi – has been told.

On 9 November 2006, then President Mbeki wrote a letter to Pieter Groenewald, an MP in the National Assembly. Groenewald had written a letter on 7 November 2006, requesting President Mbeki to appoint a Judicial Commission of Inquiry to investigate various allegations of corruption leveled against Selebi. In the letter, Mbeki declined to appoint such a commission and wrote:

Up to now nobody within the state structures has informed me that there are any investigations affecting National Commissioner Selebi that are being conducted by anybody, including the DSO, (the Scorpions). I am certain that if there was such an investigation, or such an investigation was contemplated, I would have been informed accordingly. In this regard. I must emphasise that if any of our law enforcement or intelligence agencies felt that they had information that justified such an investigation, I would encourage them to do their work without let or hindrance, in keeping with their legal mandate….

I have the greatest confidence in National Commissioner Selebi. I am certain that whatever the rumour mill is saying about him, he will continue to do his critically important work with the same diligence, dedication and selflessness he has shown ever since we appointed him as National Commissioner of the SAPS.

The conviction and sentencing of Jackie Selebi demonstrates that the confidence expresssed in Selebi in the second paragraph of the letter quoted above turned out to be misplaced. It has now also emerged that the claim made in the first paragraph of Mbeki’s letter is difficult (if not impossible) to square with the known facts. In paragraph 257 and 258 of the Ginwala Inquiry Report, Ginwala made the following findings:

It is not disputed that Adv Pikoli met with the Minister and briefed her on the investigation into the National Commissioner of Police on 13 separate occasions: In March 2006, in August 2006, on 9 November 2006, on 16 November 2006, on 11 March 2007, on 13 March 2007, on 17 March 2007, on 28 March 2007, on 8 May 2007, on 25 June 2007, on 11 September 2007, on 18 September 2007 and on 23 September 2007. Following these meetings he furnished the Minister with two written reports on 19 March 2007 and 19 September 2007.

It is also common cause that Adv Pikoli met and briefed the President on the investigation against the National Commissioner of Police on 10 occasions: In March 2006, in August 2006, on 9 or 10 November 2006, on 14 November 2006, on 20 November 2006, on 11 March 2007, on 9 May 2007, on 20 May 2007, on 15 September 2007 and on 16 September 2007. The evidence is that he gave the President written reports on 7 May 2007 and 16 September 2007.

President Mbeki was therefore briefed about the investigation against Selebi on at least two occasions before he wrote the letter to Groenewald in which he claimed that no one “in state structures” had informed him about any investigation (or pending investigation) against Selebi. In fact, Mbeki met Pikoli for a third time to discuss the investigation against Selebi on the very same day that he wrote the letter to Groenewald. As this was a letter and not a national televised speech, one will never know if Mbeki’s bottom lip quivered while he was writing this letter.

This casts new doubt on the veracity of a letter purportedly written by Mbeki to the then Justice Minister Brigitte Mabandla on 17 September 2007 – 6 days before Pikoli’s suspension – about the Pikoli case. Mbeki’s office first refused to release the letter to the Ginwala Inquiry - claiming that it was privileged – but later relented and released the letter to Ginwala. The letter did not contain the smoking gun that Pikoli and his lawyers had expected. In part it reads (see paragraph 264 of Ginwala Report):

In view of the constitutional responsibilities of the president with regard to the Office of the National Commissioner of the police service, I deem it appropriate that you obtain the necessary information from the national director of public prosecution regarding the intended arrest and prosecution of the national commissioner. This would enable me to make such informed decisions as may be necessary with regard to the national commissioner.

I have always wondered about the authenticity of this letter. In the context of the known events,  the contents of this letter seem, to say the least, surprising. Pikoli had met Mbeki on 15 and 16 September 2007 to brief him on the Selebi matter and on his intention to arrest Selebi. Ginwala confirmed that at the first meeting on 15 September Pikoli informed Mbeki about the warrants obtained for the arrest of Selebi.

At this meeting on 15 September Pikoli was asked to prepare a report for the President on the impending arrest of Selebi, which Pikoli did. He handed the report to the President on 16 September and again discussed the matter of Selebi’s case with the President. Yet a day later Mbeki wrote a letter to the Minister of Justice asking her to obtain the necessary information from Pikoli about the intended arrest of Selebi – information which Ginwala found Pikoli had already provided to Mbeki the previous day.

What other information – not provided by Pikoli – did Mbeki need? The letter is rather vague and does not specify the nature of the information required by Mbeki. If Mbeki needed specific information not provided to him by Pikoli at the two meetings on the 15 and 16 September and in Pikoli’s report, why did Mbeki not stipulate in his letter to the Minister exactly what information he wanted to obtain?

Mbeki had been briefed 10 times about the investigation against Selebi. He had two meetings in two days with Pikoli about the arrest and also received a report from Pikoli about the arrest. Yet the day after these two meetings he wrote a letter in which he asked the Minister to obtain more information from Pikoli about the arrest without saying anything about the nature of the information required.

The Ginwala Inquiry Report may cast further light on the matter. After receiving the letter written by Mbeki on 17 September 2007, Menzi Simelane wrote a letter to Pikoli the next day (18 September 2007), which was signed by Minister Mabandla and sent to Pikoli. Ginwala comments as follows on this letter sent by the Minister to Pikoli (see paragraph 159 of the Report):

The letter prepared by the DG: Justice did not conform to the request from the President [in his letter] to the Minister dated 17 September 2007. I point out elsewhere in the report that the literal reading of the letter conveys a meaning that Adv Pikoli was to stop any plan to arrest and prosecute the National Commissioner of Police until the Minister was satisfied that there was sufficient information and evidence to do so. . .The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

If I was an investigative journalist or a prosecutor, I would probe the necessity for the writing of this letter by Mbeki to Mabandla. Was it perhaps an after the fact fabrication to cover up a different letter written by Mbeki to Mabandla? I would wonder whether the “real” letter actually instructed Mabandla to issue an instruction to Pikoli to stop the arrest of Selebi (which would have been unlawful).

Remember, after receiving the letter from Mbeki, Simelane and Mabandla sent the letter to Pikoli which contained the instruction not to proceed with the arrest of Selebi. Why would the normally soporific and lethargic Minister suddenly ask her DG to write a letter containing an instruction which Ginwala found was probably unlawful, when all the President asked her to do was to get more information from Pikoli?

Why would Mabandla tell Pikoli on 23 September (when she asked him to resign and he refused and Mbeki then suspended him that same day): ”Vusi, it’s about integrity and one day I will speak” (see paragraph 281 of the Report)?

It does not make much sense to me. Could it be that poor Menzi Simelane drafted the letter (later signed by Mabandla) which ordered Pikoli not to arrest Selebi, because that is what the President had ordered them to do in a letter that was never produced at the Ginwala Inquiry and was replaced by a letter fabricated by the Presidency after the fact?

Of course, I have no idea whether this is what happened. I am not claiming that the letter provided to the Ginwala Inquiry was fabricated and have no hard evidence to suggest that it was. I am, however, posing questions about the events, which – in the light of all known facts – do not seem to add up.

In the light of the evidence that Mbeki was less than truthful about his knowledge about the investigation against Selebi, questions about what actually happened in those fateful few days will remain. Only Mabandla, Simelane or someone else in the Presidency could answer these questions and lay to rest the suspicions of duplicity at the highest level of government.

On World Cup Courts and the prosecution of “criminals”

Jul 7th, 2010
by Pierre De Vos.
22 comments

While watching the Black Stars of Ghana being “cheated” out of a semi-final place at the Fifa World Cup by the very human hands of Luiz Suarez of Uruguay, one of my friends told us that he had just received an sms about the arrest of Paris Hilton for the possession of dagga at a World Cup game in Port Elizabeth. Poor Paris Hilton, I thought: why on earth was she stuck in Port Elizabeth?

It was later reported that Hilton (who – much like Julius Malema – has a certain knack for publicity) arrived at the courthouse about 30 minutes after being arrested and charged. While she waited for the hearing, people with FIFA badges were seen bringing her seven pizzas, 12 cold drinks and six waters in an antechamber. (A more innocent person than myself might have wondered why she was so hungry at that time of the night.) The charges against her were then dropped.

Hilton was lucky. Themba Makhubu, a 22-year-old Johannesburg man, was sentenced to five years imprisonment for stealing a cellphone from a World Cup visitor. Bright Madzidzi, 20, and George Magubane, 28, were sentenced to 15 years imprisonment for robbing Spanish and Portuguese visitors. No force was used during the commission of either of these crimes.

One could ask many questions about these different events. Why is it still a crime to possess small quantities of dagga? Did Paris Hilton get special treatment because she was famous? (One assumes Mr Madzidzi and Magubane were not given any pizza after their arrest.) Why did the World Cup Courts impose such harsh sentences on those convicted? Were the rights of the accused (to be presumed innocent and to get a fair trail) not trampled upon? And why was it possible to investigate and successfully convict these accused when many criminal cases drag on for many months and even years in our ordinary courts? Can we learn something from the experience?

Of course, in South Africa (as in many parts of the world) rich, famous or politically well-connected persons who are accused of committing criminal offenses, are usually not treated in the same manner as other accused persons who might not have the money to employ lawyers and are arrested and tried far from the media spotlight. Having a lawyer helps to ensure that one is treated with some dignity. It also helps to ensure that one’s Constitutional rights are not trampled upon. Without a well-functioning and extensive system providing legal aid to accused persons (something that is lacking in South-Africa), the  rich and famous will inevitably be favored – whether they are tried by World Cup Courts or by any other Courts.

But if we accept this sad fact as given, it must be said that, on paper at least, there should be nothing amiss with the justice meted out at the World Cup Courts. Accused persons tried in these courts have exactly the same rights as any other person tried before the courts. They are presumed to be innocent until proven guilty and is entitled to a fair trial. Some of the sentenced handed out at these courts do seem excessive and I suspect that many of the sentences will be reduced in the event of appeals.

What the quick justice meted out at the World Cup Courts underline, is that where the political will exists to deal decisively with the investigation and prosecution of crime, huge improvements in the effectiveness of the criminal justice system will ensue. More money is of course needed. But a more effective use of existing resources will also make a difference.

Will we learn this lesson? Will there be more political pressure on the police to investigate crimes that are committed? Will the police be better managed and supported to help them to up their game? Will the management of courts and of case loads be improved to try and emulate the World Cup Courts experience? Will the police receive better training so that they will be able to do the hard work of investigating cases and of properly gathering the evidence required to secure conviction? Is there a chance that the politicization of the criminal justice system will be reversed?

I wish I could have answered in the affirmative to these questions. Sadly, both the present heads of the police service and of the prosecuting authority were appointed because of their political connections rather than because of their knowledge of the law, their management abilities and their understanding of policing and prosecution. This means that the chances are rather slim that we will learn any of the lessons we could have from the World Cup Court experience.

Hopefully I am wrong. Perhaps both Bheki Cele and Menzi Simelane will grow into their jobs. Perhaps they will learn to leave their political allegiances aside and will work tirelessly to improve the criminal justice system to make it both more effective and more fair.

Then again, given the events of the past few years, I am not optimistic. The NPA Head was fired exactly because he wanted to put political allegiances aside while the Police Commissioner was at first protected because he did not.

Meanwhile the Paris Hilton’s of our world (including politicians and their friends) will probably continue to enjoy special treatment while the rest of us will look on helplessly.

On corruption in South Africa

Jul 5th, 2010
by Pierre De Vos.
123 comments

As the Marx Brothers might have put it, ‘this man may look like a corrupt idiot and act like a corrupt idiot, but don’t let that deceive you – he is a corrupt idiot.’ – Slavoj Žižek

On 30 May 2003 then President Thabo Mbeki published one of his politically and analytically most brilliant internet letters. The missive, which became one of his most famous, attempted to challenge the widespread perception that had taken hold (and remains to this day) that the government arms deal had been riddled with corruption.

The letter laid bare some of the deeply problematic ideological assumptions underlying the discourse on corruption in post apartheid South Africa. It then used this insight – which was not only spot on, but also tapped into a widespread resentment amongst members of the newly emerging post-apartheid elite – to defend what seemed to be indefensible.

(This was a tactic often used by Mbeki in his letters: correctly expose and analyze widespread racist or Afro-pessimistic assumptions, then use the insight to deny the existence of obvious problems or to discredit the valid criticism of progressive voices in our society. He used the same tactic against the so-called “ultra left” in Cosatu and the SACP and against those who pointed out the folly of his HIV stance.)

In the letter Mbeki wrote (and I am quoting at length):

In the Biblical Gospel according to St Matthew, it is said that Jesus Christ saw Simon Peter and his brother Andrew fishing in the Sea of Galilee. And He said to them: “Follow Me, and I will make you fishers of men.” Perhaps taking a cue from this, some in our country have appointed themselves as “fishers of corrupt men”. Our governance system is the sea in which they have chosen to exercise their craft. From everything they say, it is clear that they know it as a matter of fact that they are bound to return from their fishing expeditions with huge catches of corrupt men (and women)….

[W]e should not, and will not abandon the offensive to defeat the insulting campaigns further to entrench a stereotype that has, for centuries, sought to portray Africans as a people that is corrupt, given to telling lies, prone to theft and self-enrichment by immoral means, a people that is otherwise contemptible in the eyes of the “civilised”. We must expect that, as usual, our opponents will accuse us of “playing the race card”, to stop us confronting the challenge of racism.

The fishers of corrupt men are determined to prove everything in the anti-African stereotype. They rely on their capacity to produce long shadows and innumerable allegations around the effort of our government to supply the South African National Defence Force with the means to discharge its constitutional and continental obligations. They are confident that these long shadows and allegations without number will engulf and suffocate the forces that fought for and lead our process of democratisation, reconstruction and development. However, what our country needs is substance and not shadows, facts instead of allegations, and the eradication of racism. The struggle continues.

Re-reading this letter, it seems almost inevitable that Mbeki would have attempted at first to protect  former Police Commissioner Jackie Selebi. It also explains (better than anything anyone else may have written) why he refused to believe the evidence of Selebi’s corruption provided to him by the Prosecuting Authority and even continued to claim that nobody had provided him with any information that Selebi did anything wrong – even after Vusi Pikolu had briefed him on ten different occasions on the evidence against Selebi.

For Mbeki, his (often perceptive and accurate) ideological insights often trumped the proven facts. His tragedy (if you are sympathetic to the former President) or his evil genius (if you are not) was that these general ideological insights were often brilliant and perceptive, but blinded him to the specific facts and the valid criticism of individuals and about particular problems facing the government and the country and its people.

Which brings me to the set of questions I want to try and address in this post: why did an obviously brilliant, courageous and seemingly deeply principled struggle hero like Jackie Selebi became corrupt? Why are we confronted almost every day by news of crooked cops, Home Affairs officials and tenderpreneurs? Why does it sometime feel as if we are being engulfed in a tidal wave (or is it a Tsunami) of sleaze and corruption in South Africa?

The easy answer would be to blame everything on the racist stereotypes that Mbeki rightly warned against and to deny the very facts before our eyes. But this approach would not help us to understand the root causes of the problem and neither would it help to eradicate them. Although the Afro-pessimistic master narrative which Mbeki warned us against may well have helped to exaggerate the perception of corruption in our society, it cannot explain away the problem, which is very real and very dangerous for the long term well-being of our country.

For the same reason we should reject with contempt the racist and offensive claim that there is something in the DNA of the ANC and the government it leads that predisposes it and its members to corruption.

I would like to suggest that the problem can at least partly be attributed to the nature of our transition to democracy. South Africa did not experience a true revolution, but a managed transition. The state remained in tact and the private sector was largely left untouched. During the transition period the crony capitalists and the opportunists, who had exploited the conditions created by apartheid to make vast amounts of money, went to work to capture the new elite in order to protect their own financial interests.

Thus some of the big mining houses and other big business institutions who had resolutely supported apartheid, jumped ship and went to work to woo the members of the incoming government in order to protect their profits and their vested interests. They donated money to the ANC, forged close personal ties with some ANC leaders by wining and dining them and by providing them with all kinds of material “assistance”. They claimed they were doing this out of altruism or out of a deep sense of shock about the horrors of apartheid which – so they laughably claimed – they had only belatedly become aware of.

In essence, what large sections of the big business community did, was to offer legal bribes to the ANC as a movement as well as to individual ANC members to ensure that their own financial interests would be secured. They would offer fantastic riches to a few lucky well-connected individuals through BEE deals and directorships with the understanding that there would not be any fundamental transformation of the economic system in South Africa. Workers would still work and die for a pittance, while bosses would be allowed to continue to draw huge salaries and bonuses and subvent profits to London and New York.

Was it then not all too human and understandable that some (but not all) members of the new elite – who had not benefited from these legalized bribes – began to feel hard done by and tried to do something about it? Thus the mutually beneficial relationship between crony capitalism and some members of the new elite became firmly enrenched. In the feeding frenzy that followed, the lines between the legalized bribes paid by the apartheid capitalists and the criminal bribes paid by people like Schabir Shaik and Glen Agliotti became somewhat blurred.

And as more and more people seem to get fabulously rich (perhaps not as rich as those who exploited the apartheid system) and the culture of accumulation and consumption firmly took hold, it was perhaps inevitable that somebody like poor Jackie Selebi would begin to think that there was not really anything wrong with a gangster buying your very own child a nice pair of shoes. Ironically, it is exactly against this new kind of colonization that Mbeki himself warned in his Nelson Mandela Lecture when he said:

Thus, everyday, and during every hour of our time beyond sleep, the demons embedded in our society, that stalk us at every minute, seem always to beckon each one of us towards a realizable dream and nightmare. With every passing second, they advise, with rhythmic and hypnotic regularity – get rich! get rich! get rich! And thus has it come about that many of us accept that our common natural instinct to escape from poverty is but the other side of the same coin on whose reverse side are written the words – at all costs, get rich!

Is it too late to turn around this ship? Well, extraordinary political and moral leadership is required to address the capturing of our hearts and minds by the crony capitalists. We have the perfect Constitution and the perfect laws to fight the good fight and to stop the rot, but without the political leadership there will be no success. That is why the fight raging currently inside the ANC between the tenderpreneurs and those who believe in the creation of a more fair and just society is pivotal for the long-term well-being of our society.

Sadly, because he is himself compromised and implicated in the culture of greed through his association with the fraudster Schabir Shaik, President Jacob Zuma is probably not the best leader to lead the fight. Time for a change in ANC leadership perhaps?

Selebi conviction leaves many questions unanswered

Jul 2nd, 2010
by Pierre De Vos.
51 comments

The conviction this morning of former Police Commissioner, Jackie Selebi, on charges of corruption leaves many questions unanswered. Judge Meyer Joffe found that Selebi had received substantial amounts of money from gangster Glen Agliotti and then did favors for Agliotti, including showing him a top secret document which contained substantial sections of the the national intelligence estmate. Joffe also found that Selebi had been a very bad witness who fabricated evidence and lied to the court.

Not that Agliotti was a much better witness, but in as much of his testimony was corroborated by other witnesses, the court found that he had to be believed and not Selebi.

The conviction must place a question mark over the actions of former President Thabo Mbeki, who appointed Selebi, at first took steps aimed at protecting Selebi and claimed that there was no evidence of wrongdoing on the part of Selebi even after Mbeki was briefed by the National Director of Public Prosecutions (NDPP) about the evidence against the former top cop.

Why was Mbeki so adamant that Selebi should not be arrested? Why did Mbeki ask us to trust him on Selebi and why did he maintain – in the face of overwhelming evidence provided to him –  that there was no evidence to suggest that Selebi was a crook? Why did he appoint this guy in the first place? Does it not show- at the very least –  a spectacular lack of judgment on the part of our former President?

One should also ask if Selebi would ever have been investigated and prosecuted by the Police and whether he might not have still been our Police Commissioner had it not been for the Scorpions. If the now defunct Scorpions had not taken on the case, the chances are that we would never have known that Selebi was a crook. The conviction of Selebi thus underlines the sheer folly of the decision to abolish the Scorpions.

During Selebi’s trial it emerged that several members of the Police Service tried to assist Selebi to prevent him from ever facing charges of corruption. The prosecutor was arrested and acting crime intelligence boss Mulangi Mphego intervened to secure testimony from Agliotti to weaken the case against Selebi. But it is not entirely clear to what extent the Police tried to protect a now convicted crook from prosecution.

Meanwhile Menzi Simelane has dropped all charges against Mphego relating to the Selebi case. Why was this done? Who is being protected? Can one trust Simelane to have dropped the charges purely for legally sound reasons? The conviction of Selebi suggest that the decision to drop all charges against Mphego was at best dubious.

For the conspiracy theorists, or even for those merely skeptical of the integrity of the Police, questions must now also be posed about the role of Selebi and other members of the police in the investigation into the murder of Brett Kebble. Selebi was called from the scene of the crime and it is alleged that he allowed Kebble’s car to be removed from the crime scene before the police could gather the required forensic evidence. Was Selebi protecting anyone when he allegedly did this?

At Kebble’s funeral then President Mbeki’s side kick and enforcer, Essop Pahad, bizarrely said that “what Brett said to any of us in private should remain private”. It is well-known that Kebble bankrolled the ANC and questions will inevitably be raised about the link between Selebi, Kebble, Mbeki and the financial dealings of the ANC and some of its members. Whether Selebi and others are hiding anything is, of course, unclear.

Lastly, the conviction underlines the fact that the relevant piece of legislation on corruption – passed by the ANC dominated Parliament – is excellent. Where a political will exists to investigate and prosecute corrupt individuals, whether they are politicians, state officials or private businesspeople, the legislation will provide sufficient legal backup to secure convictions. In that sense, the prosecution and conviction of Selebi is remarkable: I suspect in most countries in the world the top cop would never have been investigated and convicted of corruption – no matter how crooked he might have been.

The question does arise though, whether there is sufficient political will on the part of the Zuma administration to ensure that this act will be utilized properly to help stamp out corruption in both the public and the private sector. Given the fact that President Zuma himself only escaped prosecution for corruption through the shenanigans of the NPA, this is sadly far from clear.

Political will is key to fighting corruption. If we see more high profile cases of private and public corruption brought to court, we will know the Zuma administration is serious about stamping out corruption. If we do not, we will know that it is rotten to the core.

Selebi case: “The dog ate his homework”

May 3rd, 2010
by Pierre De Vos.
57 comments

The state’s cross-examination of former Police Commissioner Jackie Selebi finally came to an end on Friday. I have been following the cross-examination of Selebi on the Mail & Guardian’s amaBhungane Twitter page: not as good as being in court oneself, but facinating – even riveting – nevertheless.

At the end of the cross-examination it was very clear why Selebi’s council, Jaap Cilliers, had brought an application for the acquittal of Selebi at the end of the state’s case. Having consulted with Selebi, he must have realised that Selebi might not make the best of witnesses and that he might not be able to keep his story straight, so it was imperative to keep him away from the witness stand.

We do not know – and I am in no way speculating – on whether Selebi will be convicted on any of the charges he faces. It is for a court to decide whether the state has proven its case beyond reasonable doubt after hearing all the evidence. But the cross-examination did reveal that Selebi was a less than reliable witness. His “Swiss army knife” defence (Selebi claimed previously that the only present Glen Agliotti ever gave him was a Swiss army knife) turned into a classical “the dog ate my homework” defence.

Selebi claimed during the cross examination that he had cash slips and receipts in his possession proving what he had spent his money on and disproving the state’s claim that he had received hundreds of thousands of Rands from Agliotti as bribes. But on Friday Selebi failed to bring cash slips and receipts to court as requested because he claims his wife destroyed them on Thursday.
 
Both prosecutor Gerrie Nel and Judge Meyer Joffee looked astonished when Selebi told them he did not bring the receipts because his wife did not only discarded the slips but actually shredded them (yeah right). The former police chief claimed that his wife had shredded them on Thursday because she had found credit card statements which she thought would be better evidence. Nel described this explanation as ridiculous and accused Selebi of playing to the court. He said this showed Selebi was arrogant and had no credibility, a claim one finds difficult to dispute.

Then there was the “secret report” that Selebi claimed he had declassified and had at home. He was sent home to fetch it, but when he produced a document the next day Gerrie Nel claimed that the document was a “cut and paste” job. Nel pointed out several problematic issues in the document such as different colours in the printed fonts, the SAPS logo cut off on the front page original when it appears in full on the “copy” handed in earlier and differences in the typing on various paragraphs.

As I followed the crumbling of Selebi’s various stories under relentless cross-examination, I was reminded of the Judicial Services Commission (JSC) and wondered whether the members of that august group were taking notes and whether they felt embarrassed at all for deciding not to proceed to establish the truth of the complaint of gross misconduct levelled against Judge President John Hlophe by the judges of the Constitutional Court and not to consider the counter-complaint by Hlophe either.

Remember, the majority of members decided that although there were fundamental disputes of fact between the version put to it by Judge President John Hlophe and the versions put to it by other judges of the Constitutional Court (in other words, although the JSC admitted that either Hlophe or the judges of the Constitutional Court were lying), the JSC was not persuaded that cross-examination would “necessarily lead to more clarity on the disputed issues”.

As has so amply been demonstrated by the Selebi case (as well as by the devastating cross examination of Menzi Simelane at the Ginwala Inquiry where he was exposed as a person with a difficult relationship to the truth), this kind of argument is such utter nonsense that one cannot believe that any lawyer would have made it with a straight face. If the three main protagonists had been cross-examined vigorously two things would have emerged.

First, some witnesses would have shown themselves to be more credible and others less so and thus their version of events would have had to be accepted as the more plausible. After cross-examination the finder of fact must decide whose version was more probably true and to help them in this, credibility becomes all important. Cross-examination helps to make findings on credibility “finish and klaar” (as Selebi said about his friendshipp with Agliotti). 

Second, the judge or judges who had lied might very well have been exposed as such because – as Selebi has shown – if you start lying it is difficult to keep your story straight and then you tell more lies, which leads to even more lies and finally to exposure as a liar.

In any case, as it turned out, the cross-examination was not really necessary as the JSC had already decided who were probably lying to them during the Hlophe affair and who were telling the truth: it just did not want to take the action it is constitutionally required to take. Given the fact that both Hlophe and Judge Chris Jafta (who had contradicted Hlophe’s version of events) applied for a position to the Constitutional Court after the decision by the JSC not to go ahead with a hearing, and given the fact that the JSC had nominated Jafta for a position on the court but not Hlophe, one must make the irresistible inference that the JSC believed Jafta and Judge Bess Nkabinde and not Hlophe.

There were two versions of the events that took place in the offices of Jafta and Nkabinde before the JSC: Hlophe’s version and the version of the other two judges. If the JSC had thought that Hlophe was telling the truth, it surely would not have appointed Jafta to the Constitutional Court. Even for the JSC it must surely be unthinkable to appoint someone to the highest court in the country it suspects of having told blatant lies about a fellow judge. If it had thought Hlophe was the honest one, surely he and not Jafta would have been nominated for a position on the top court by the JSC.

In any event, what the Jackie Selebi cross-examination shows is that the JSC’s argument that cross-examination of Hlophe, Jafta and Nkabinde would not take the matter further was about as credible as Selebi’s “the dog ate my homework” defence.  Given the fact that the JSC’s original decision has now been set aside, the JSC will have to make a new decision on whether to do its job or not. When it does, it would really enhance that institution’s credibility if it keeps in mind what happened to Selebi under cross-examination. But don’t hold your breath.

What now for Jackie Selebi

Apr 13th, 2010
by Pierre De Vos.
19 comments

It came as no surprise that Judge Meyer Joffe decided yesterday to reject the application by former Police Commissioner, Jackie Selebi, to have the corruption charges against him dismissed. Selebi will now have to take the stand in his own defense because he has to convince the court that an array of  state witnesses lied when they claimed he received money and other benefits worth well over R1 million from Glen Agliotti. Selebi maintains that he only ever received a Swiss Army Knife from Agliotti.

Selebi is being prosecuted partly in terms of the old Corruption Act of 1992 and partly in terms of the new Prevention and Combating of Corrupt Activities Act of 2004. The new Act is an excellent piece of legislation that casts the net for corruption very wide indeed. Any public official who accepts any gratification – which would include money, donations, gifts or any other real or pretended aid – and then, because of receiving that gratification, acts illegally, dishonestly or in a biased manner will be guilty of the crime of corruption. A public official who had taken such a gratification and had then acted in a manner that amounted to an abuse of power or a breach of trust would also be guilty of the offence of corruption.

The Act makes clear that when the state has proven that a public official has taken any money or other benefit from a private citizen, that public official will be in deep trouble if it can be shown that the public official then performed or did not perform an official act or even where that official showed “any favour or disfavour” to any person in performing a function as a public official.

I suspect this is why Selebi’s lawyers have put up the Swiss Army Knife defence. They claim that Selebi has never received any money or other benefit (like clothes or donations for an Interpol dinner) for either himself or his family from Agliotti, bar a Swiss Army Knife which Agliotti allegedly gave him. (Agliotti said during his testimony that he would never have given Selebi such a cheap gift!)

This defence might have seemed plausible because there is no paper trial of money changing hands between Agliotti and Selebi (if money ever did change hands) and because Agliotti – as the state’s star witness – has a serious credibility problem. The problem for Selebi and the defense is that at least some of Agliotti’s testimony about the “gifts” and “donations” given to Selebi was corroborated by other witnesses who seemed far more credible than Agliotti. The blanket denial by Selebi of ever receiving any money or other benefits from Agliotti might therefore come back to haunt him as it might affect Selebi’s credibility as a witness.

But I suspect Selebi had no other choice but to deny ever receiving any money or benefits from Agliotti. This is because the 2004 corruption act  casts the net so wide and evidence – including phone records and testimony about how Agliotti used his connections with Selebi to arrange introduction between Selebi and various crooked businessmen - seem to show that Agliotti did indeed receive special treatment from Selebi (had thus “showed him a favour”). Once the state has thus shown beyond reasonable doubt that Selebi had received any “gratification” from Agliotti, Selebi would be in serious trouble.

That is why Selebi will now have to take the stand to deny ever receieving any money from Agliotti. This is, of course, a gamble as Selebi will be subjected to cross examination. Apart from some weirdo’s on the Judicial Services Commission (JSC), most lawyers agree that good cross-examination can be rather lethal to anyone who is not telling the truth. This is because it becomes very difficult to keep one’s story straight while being cross-examined when one is not telling the truth. (Just ask Menzi Simelane whose credibility was completely destroyed by Wim Trengove during cross examination at the Ginwala Inqiury.)

It might be that both Agliotti and the other state witnesses are lying and that Selebi really never received any “gratification” from Agliotti. In that case, Selebi should be fine as he will only have to tell his story and stick to it. If, however, he is lying about receiving any money or benefits from Agliotti his credibility might be severely compromised under cross-examination. Because he is denying receiving the money, it is also not possible for Selebi to argue that he did receive the money and that he did do some favours for Agliotti  but that he had no intention of being corrupt.

The blanket denial about receiving any money from Agliotti has thus boxed in the defence. Selebi will have to give the performance of a life time on the stand. Otherwise he might have to develop deadly hypertension and request medical parole to die a dignified and quiet death in order to avoid a 15 year prison sentence.

Selebi’s Zuma option

Feb 25th, 2010
by Pierre De Vos.
59 comments

ETV news reports that lawyers for Jackie Selebi is to approach Menzi Simelane, National Director of Public Prosecutions (NDPP) in order to have his trial stopped. They report that Selebi will argue that there was a conspiracy against him and that the prosecution was tainted by prosecutorial misconduct.

Details are still sketchy, but the initial legal question is clearly whether Simelane has the power to stop the trial half way through the prosecution. Section 179(5)(d) of the Constitution allows the NDPP to drop charges against an accused, but only when this is allowed in terms of the prosecution policy agreed to between the NDPP and the Minister of Justice. I might be missing something, but section 179(5)(d) of the Constitution does not seem to allow the NDPP to stop a trial already in progress.

However, the prosecutor (not the NDPP) is empowered to stop the trial after a plea has already been entered, but only in very limited circumstances. The prosecution policy states as follows:

Criminal proceedings may sometimes be stopped after a plea has already been entered. This would normally only occur when it becomes clear during the course of the trial that it would be impossible for the State to prove its case or where other exceptional circumstances have arisen which make the continuation of the prosecution undesirable.

If a prosecution is stopped, an accused will be acquitted and may not be charged again on the same set of facts. A prosecutor may therefore not stop a prosecution, unless the Director of Public Prosecutions or his or her delegate has consented thereto. Such decisions should therefore be made with circumspection.

The prosecutor may therefore stop the case in “exceptional circumstances”. One imagines this is rather unlikely as prosecutors are usually prosecuting a case because they think it is winnable. A prosecutor is also unlikely to agree that there was prosecutorial misconduct in a case run by him or her and would – correctly, in my view – defer to the judge on whether there was any misconduct and if there was, whether it fundamentally affected the fairness of the trial.

However, section 179(5)(c) states that the NDPP “may intervene in the prosecution process when policy directives are not complied with”. If Simelane thus wants to stop the Selebi trail he will have to rely on this section and such a move will have to be based on evidence that the prosecuting policy was flouted. The relevant section of the prosecution policy states that:

prosecutors should present the facts of a case to a court fairly. They should disclose information favourable to the defence (even though it may be adverse to the prosecution case) and, where necessary, assist in putting the version of an un-represented accused before court.

A credible submission by Selebi’s lawyers will have to provide hard evidence that demonstrates prosecutorial misconduct. A fabrication of evidence by prosecutors will obviously constitute such misconduct. As the Supreme Court of Appeal has made clear evidence that a prosecution was brought for an ulterior purpose would not constitute such conduct as long as the prosecutor always had the intention to secure a conviction.

Even then, given the fact that the trial is already underway and given the question mark hanging over Simelane’s credibility and independence, it would be advisable for Simelane not to intervene in this case. If evidence of misconduct exist, the honest option would be to put this before the court and to argue that it would be impossible for Selebi to get a fair trial. It is always better in such cases for a court – and not for a tainted political appointee – to make a decision about the ability of Selebi to get a fair trial. That way the credibility of the criminal justice system would not be placed under undue stress.

If the ETV repot is correct, it would represent Simelane with his first real test. Will he act in the interest of justice with an eye towards securing the credibility of the NPA and the criminal justice system or will other factors persuade him to intervene in this matter? Only time will tell.

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