Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
3 December 2011

Jackie Selebi is finish and klaar

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.

2015 Constitutionally Speaking | website created by Idea in a Forest