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. . .
See Seminar Room (here http://constitutionallyspeaking.co.za/jackie-selebis-recusal-application/) for the full recusal affidavit.
Selebi’s advocate seems like quite a smart guy. Not the kind of guy to bring poorly premised applications. So as Pierre suggests: either the defense team has a good tactical reason or Selebi is just too sensitive. There may be other explanations but those two appear to be the most plausible. I think the second possibility is the more likely of the two. Selebi has already shown that he won’t always think before he speaks (‘finish and klaar’ and what have you). So it could be that he doesn’t always think too much before acting either. And if it’s true that Selebi doesn’t think a few moves ahead by force of habit, then Cele is a welcome change no? I mean at least Cele is in bed with a suspect politician and not a confirmed mafioso.
I’ve thought for some time that the game plan was for Agliotti to show himself as a fool and a two faced liar, something I believe adds to Selebi’s defense. Think about it; Agliotti has to give testimony against his friend and is thus in a bind, so the plan is to prove himself a totally unreliable witness thus deconstructing the prosecution’s argument brilliantly.
As for the recusal request, what a hoot. Delaying for time, and nothing less than throwing the dice for the possibility of a more defense supportive judge. Always it is: I want my day in court and then everything possible to delay the outcome. Eish, why bother? I guess because it worked for JZ.
Now imagine, if Selebi succeeds with this recusal demand, won’t this install a procedure utilized by all who follow, just as political consipiracy accusations are now standard argument. In the end its not just the public and our Democracy which loses, its the judiciary and legal profession as well.
I find this a very interesting affidavit indeed, but not a very impressive application. I want to stress that it is very dangerous to speculate about the outcome of a case, or an application, if you didn’t hear, or at least read, everything that was said.
I don’t think altercations like that between a judge and an advocate is uncommon at all. Judge Joffe is, if not the most competent, one of the most competent judges in Gauteng, and Jaap Cilliers knows it. On the other hand Cilliers is not just the average advocate. The SC he writes after his surname are not his initials, it says a lot.
Rulings made by judge Joffe in favour of the State also means nothing, unless Selebi can clearly and convincingly demonstrate (to Joffe) that it was not only done in error, but was so wrong that the reasonable onlooker would get the impression that the judge made the mistakes as result or prejudice. If that was not the case, one would get the situation where you just have to raise a couple of unfounded objections, get the rulings against you, and then ask the judge to recuse himself.
Press reports created the impression that thing looked very bad for the State, but we must not forget that the journalists are laymen, and doesn’t always realise the significance of what happens. Nobody was surprised when it turned out that Agliotti turned out to be a very untrustworthy witness. The way I understand things, he is an accomplice witness. He is a convicted drug dealer. Agliotti’s affidavit in his bail application for the Kebble murder in my opinion a confession to murder. But, al the state has to prove in broad terms is that Selebi received the money from Agliotti, knowing that the money was given with the expectation that that Selebi would use his official position to return the favour. I can write pages about this, and I am tempted to do it, because my passion for the law is more or less equal to Brett Nortje’s passion for his gun. But the short of it, if the State can bring enough supporting evidence to convince the judge that Selebi received the money from Agliotti, then Selebi will probably be in serious trouble.
An application to recuse is brought on instruction of the accused, but he gets advice from one of the top advocates in the land. If I were Jaap Cilliers, and I think things are going my client’s way, I will tell him don’t ask for a recusal, no matter how unhappy you are with the judge.
I don’t think Selebi is hoping that in case of a recusal his political connections will help him to evade a new trail. He is after all Selebi’s man.
My conclusion: Jackie Selebi is feeling the heat.
Prof, given the test for recusal which you set out above I would have to agree that the recusal application is unlikely to succeed. (As an aside I have to say I have never been a fan of the CC’s reasoning in the Basson matters.)
Not being involved with crim. law myself I am persuaded that many people who are not lawyers would find the court’s conduct as set out in Selebi’s affidavit objectionable. On the papers I would struggle to claim that he instructed his lawyers to proceed with the application because he’s “hard-headed”. Unfortunately for Selebi the legal requirement is something else.
That said, Prof, what do you make of Selebi’s claim at para 22 that the court had already made a credibility finding against him at that stage. I struggle to see any other conclusion. What is worse is I fail to see the basis on which the court could have made such a finding.
When at para 36.1.2 the court says someone is influencing the proceedings, does that not at the very least show an unfavourable disposition by the court against the accused? Obviously there is no suggestion that it is the prosecution which is being accused by the court.
Lastly, given that the only witness who has taken the stand so far has been shown on numerous occasions to be a liar, to the extent of fooling some not so stupid business people to pay all sorts of commissions for access to Selebi, on what do you base your claim that Selebi must have been so stupid for not having been on-to Agliotti? By the looks of things Nel seems to have been fooled by him at least once or twice.
On another note, are you aware of any suggestion from Selebi’s colleagues at interpol that he is either so stupid or a crook? Dont get me wrong, I am not defending the guy, I am no a fan of his, but I do find your unhesitating reliance on Agliotti quite shocking to say the least.
Good post Prof. There appears to be some need being serviced in the application, and it can’t be the recusal of M’lud Joffe.
I stand corrected prof. On second thoughts you don’t seem to have relied on Agliotti.
Politics – pure and simple.
This is a pre-emptive strike so that in the unlikely event that Selebi is convicted, he can declare to the people “you see – I told you so – I was convicted by a biased white judge – I never had a chance”.
Selebi is not a policeman, never was (How the media could refer to him as a “top cop” is beyond me!)- he is a politician that was deployed as the political head of the Police force.
I can don a white coat and walk around the wards of a hospital – this would not make me a brain surgeon!
Is it just me or does Agliotti’s testimony seem more like testimony for the defence rather than the prosecution?
I think the real evidence will come when the forensic accountants and auditors take the stand.
I guess that we can expect the Schabir defence – “they were gifts, not bribes.”
Perhaps Selebi is too stupid to realise that the case is going really well for him………..so far!
Good post Prof, and based on a stringent test laid down in Wouter Basson’s case the application by Selebi is unlikely to succeed but the fundamental question is, was the CC right in laying out such an impossible test in the face of the consequence that Hartzenberg indeed bizarrely acquitted Dr Death in the end? Seems to me the CC was wrong, Hartzenberg was indeed biased and should have been recused, that is the real question, not whether Selebi is right to bring the recusal application.
Mdu et al, I have also wondered about the stringent test set out in various CC judgments (including SARFU, Van Rooyen and Basson). It serves several important purposes though: it prevents litigants or accused persons with deep pockets from delaying trials and to bring frivolous applications because they do not like the way their case is going thus undermining the administration of justice because of their money; it protects the integirty and independence of the courts as it assumes judges are above board and acknowledges that even where judges make mistakes this does not mean they can be said to be biased; it secures the integrity of the process as a litigant or accused can always challenge the decisions of a judge on appeal and it would undermine the system of checks and balances inherent in the appeals process if people before the court had a second bite at the cherrie, so to speak.
Sivakashi, I was not in court so its difficult to comment, but I imagine judges are called upon every day to make decisions about the conduct of the parties before it, based on the available evidence. Judges have a very broad discretion to run their courts and it would be impossible for judges to do their work if they were not allowed to make value judgements about the conduct of the parties before them as the trial goes on. For example, if a judge gets the impression that a litigant is trying to stall proceedings, he or she might make rulings to try and circumvent that and that alone would not mean one has made a credibility finding against one of the parties. If I understand the affidavit of Selebi correctly, he is complianing that the judge did not believe the statements and claims he had made (without providing any proof thereof) about the conspiracy against him. Surely that alone cannot lead to a need for recusal as the judge surely is entitled not to act on the basis that untested and (what appears from the outside at elast) wild allegations of a conspiracy are actually true. If I go to court and allege that the other party is suing me only because that party is a member of the CIA or the illuminiati and wishes to udnermine me, and the judge decides to not to make decisions that would seem to endorse my allegations then the judge surely has not made a unacceptable credibility finding against me. He has merely decided not to act on the basis of untested allegations. Or am I wrong?
Good post – I think that Jaap Cilliers knows that Meyer Joffe J will not recuse himself from the trial (11h30 today – the deadline), but he wants the judge to be more docile during the rest of the trial so he can turn up the heat on Gerrie Nell’s way of conducting the prosecution (without the judge interfering). Perhaps he is bargaining on a discharge in terms of section 174 of the CPA at the closure of the state’s case, and he is just buying some insurance that he might be successful in that application?
Our thoughts are often influenced by what we want in life. When judging the CC’s reasoning in the Basson case, it should be irrelevant that is was Wouter Basson who was the accused – just as the fact that the accused in this application is Jackie Selebi should be irrelevant. Many people want Jackie Selebi to be guilty, just as many want Wouter Basson to be guilty. In the case of Wouter Basson it seems that the SCA and the CC thought that the case against Wouter Basson wasn’t proved. They had the privilege of not only reading all the evidence, but also arguments by senior council. I did not have that privilege, so I can’t give an opinion on his guilt/innocence. I predict the same will happen in the Selebi case, some will swear it was a conspiracy against an innocent man, others will say the guilty got his just deserve, or got away with heinous crimes.
Just to add to what Piere is saying in response to Sivakashi’s post:
I don’t think Selebi’s claim in para 22 is necessarily important. Remember: I don’t have the facts, but the way I read it Selebi lodged an application for particulars or documents, insisting that there is no way that he can adequately prepare for the trail without those particulars. Coetzee J? made an order that the State hand over the documents, and the State wanted to appeal that order. Suddenly when he saw that the State would not be able to proceed on the set date, Selebi changed his mind and told Joffe J well, I know that told the other judge I really can’t go on with those documents, so I’m ready, please refuse a postponement and struck the case off the roll. What I understand is that Joffe J found the sudden change of mind so improbable that he couldn’t believe it, and he said so. Perhaps I’m wrong with this, but I believe at that stage it was already on record that the State had to issue subpoenas to get statements from recalcitrant police officers. If you look at the bigger picture, the judge’s response was perhaps not unreasonable or unfounded as Selebi want to make it.
Dear Pierre,
First, I know that you probably meant to “send up” Jackie Selebi and that you probably meant it in a light-hearted manner. However, I do think it is rather facetious to draw such an effeminate allusion to a man – this I find completely unnecessary, anachronistic, derogatory and it has nothing to do with satire, joking or anything the like. It would be the same if I were to sommer call you a “hand-flapping queen or a fag” or something similar and derogatory (especially calling you names when I don’t even know you!). To this end, you seem to be sinking to a “Huisgenoot-level” which makes me lose respect for you, your opinions and persuasions and for what you stand for.
Secondly, purely from the tone of this article and from the unnecessary allusion to Selebi as “Ms Jackie”, I have the impression that one of the reasons you’re writing this article (and other articles/posts too) is purely to be able to receive a pat on the back at some future point in time, and this in the typical purile de-Vos-manner of “see, I told you so…”; rather than lifting the discussion/debate to a higher level which contributes to a constructive, objective, factual and neutral debate of an issue which would also champion your cause for the rule of law in SA, social justice (including justice for minorities, gays of course included) etc.
Finally, like you, I have also not attended the trial and in the absence of any clear trial record, it is therefore difficult to precisely say what the background circumstances have been to the present application for recusal by Selebi’s counsel. Accordingly, you cannot compare the Basson case to the Selebi case – you have no facts on which to base this premature comparison. Your enunciation of the reasons as to why the Basson-application was rejected may not necessarily be the same reasons and the same basis for why the Selebi-application could/should be rejected. Thus, relying on the Basson judgement does not give credence to your argument that the Selebi-application may fail or be rejected for the same reasons. Until clearer facts have emerged from the Selebi case as to why Selebi’s counsel have made the application, only then one is able to make a clear deduction based on fact – anything/everything else is mere speculation (even on your part). So quite frankly, I see nothing about your argument which is objective, constructive, neutral and balanced as to why Selebi’s application should not be granted.
Andy, the basis on which you take umbriage says much about you. You seem to have internalised very problematic negative gender and sexual orientation stereotypes and believe it is per se insulting and derogatory to refer to a man in female terms. That says more about your gender politics (or lack thereof) than about my state of mind.
Also, the application for recusal is available in the seminar room. You might want to read it and then comment about the differences between Basson and this case.
Pierre, you’re right that the basis of what I’m saying says much about me – but then again, your name-calling also says much about you too. Perhaps it may be that in your gender political state of mind or frame of reference it is correct to refer to a man in female terms – this is definitely not in my terms of reference. I also do not think that anyone fighting for gender (and social) equality, justice, tolerance and acceptance should be the very one who ends up calling others what they’re not – this has nothing to do with a lack of gender politics but it has more to do with a sense of appropriateness and mutual respect (in spite of the fact that I may not like someone!) and credibility.
@ Andy
“It would be the same if I were to sommer call you a “hand-flapping queen or a fag’”
There is no name for such a thing in the Pedi tongue.
Pierre, are you saying you didn’t mean the “Miss Jackie”-thing to belittle Selebi? Then how exactly did you mean it?
Dwork, I once saw one of these no-name people fully engaged with the Pedi tongue…
Andy says:
October 30, 2009 at 14:30 pm
I agree with you that “I sommer call him “Ms Jackie” because of his child-bearing hips and his predilection for expensive Italian shoes”was highly inappropriate.
And sexist too.
What would have been the response if Julius Malema said something close to that???
p.s. @ Dworky – the Pedi term for “expensive Italian shoes” is “Italian shoes” (as you know everything from Italy is expensive, even the cheap Chinese fakes).
Andy says: “Perhaps it may be that in your gender political state of mind or frame of reference it is correct to refer to a man in female terms – this is definitely not in my terms of reference.”
I thought the Caster Semenya saga has taught us something, namely that the sex/gender system we have constructed is problematic. Whenever you have a dichotomous identity formation (male-female; white-black; heterosexual-homosexual) such a formation implies assumptions of superiority, prejudice and discrimination. My aside about Ms Jackie was a playful subversion of the sex/gender system. The fact that some experience it as an insult to Selebi (or even sexist) suggests that they believe that men are superior to women and by referring to a man in female terms is therefore degrading or insulting. I wish to undermine that silly idea and challenge the sexist and heteronormative assumptions on which it is based. Example: If I had referred to Helen Zille and implied she was black and some readers have taken umbrage, I would have argued that their objections are racist. I similarly feel that those who object to Jackie Selebi being referred to in female terms are sexist. How can a man be called female, oh no, what an insult! I thought it was rather a compliment….
@ Pierre
“I similarly feel that those who object to Jackie Selebi being referred to in female terms are sexist”.
Nice try
Grossly out of shape does not equal “child bearing hips” and that’s hardly complimentary to women.
Neither is a “predilection for expensive Italian shoes” a suitable stereotype for women (excluding the likes of former Philippine First Lady Imelda Marcos).
@ Pierre,
While we’re at it here’s an interesting take on “(a) Rose by any other Name Might Become a Judge”
http://thesituationist.wordpress.com/2009/08/18/a-rose-by-any-other-name-might-become-a-lawyer/
I find it somewhat disturbing that subject matters are created out of tasteless ideologies. I would be reluctant to add a comment as I am not an expert on identity issues, what I am interested in is what constitutional breaches is Selebi guilty of and how can we tighten the accountability bolts on public servants who seem to have control over the gravy train drivers.
I have eperienced a difficult time in keeping my head up as a South African working in Madagascar as the topics of the day seem to portray South Africa as a modernised Zimbabwe. It would be interesting to find out who is paying Selebi’s legal counsel.
If I recall Zuma was defended by the taxpayers trust fund
Maggs is right.
Pierre was not only sexist in his remarks about General Comrade Selebi.
He was also being maternalist.
And fattist.
And lookist.
And, most egregiously, racist.
Why racist? I am not sure.
PdV wrote: The test for recusal is as follows:..
As a forced-to-be pro se, because of the non functioning SA judicial industry
[as confirmed by Kriegel J], I greatly appreciate these tutorials. Altho’
I guess the info is available in text books, it’s good to see it ‘in context’.
PdV wrote: The test for recusal is as follows:..
As a forced-to-be pro se, because of the non functioning SA judicial industry
[as confirmed by Kriegel J], I greatly appreciate these tutorials. Altho’
I guess the info is available in text books, it’s good to see it ‘in context’.
—
] Andy, the basis on which you take umbriage says much about
] you. You seem to have internalised very problematic negative
] gender and sexual orientation stereotypes and believe it is
] per se insulting and derogatory to refer to a man in female
] terms. That says more about your gender politics (or lack
] thereof) than about my state of mind.
===========
Wow, this is really deep hence interesting stuff: I *felt* exactly
like Andy [except as an engineer I'd use 5 words, whereas for law-people
50 will do]. Altho’ I can intelectualise PdV’s stance, it jars my genes.
Analagously how can you expect us the willingly become submerged in the
other race/gender.
———–
Mikhail Dworkin Fassbinder says:
] It would be the same if I were to sommer call you a
]”hand-flapping queen or a fag’” There is no name for such a
] thing in the Pedi tongue.
Yes indeed, because the other gender/race has a different mind, it has different
concepts and vocabulary. Imagine all the bantu concepts of which my-mense are
completely ignorant of. The blankes & whole international press don’t even realise
that JZ’s machine-gun-song is a Freudian!
Wow, this is really deep hence interesting stuff: I *felt* exactly
like Andy [except as an engineer I'd use 5 words, whereas for law-people
50 will do]. Altho’ I can intelectualise PdV’s stance, it jars my genes.
So how can they expect us to willingly become submerged in the other race/gender?!
Re. the absurdity of transforming [abandoning one's norms for the other's]: being
fascinated by donkey carts, I’m reminded how, in the arab-world, I was nearly stoned,
when I wanted to photograph a donkey-cart; and arab-women would have been ‘captured
in the photo’. The only solution is to accept that I’m a foreign-body to be rejected
by the immune system when I ‘invade’ muslim [or negroid or homosexual] societies.
Integration or transformation is absurdly impossible. Apartheid works better ?
BTW blogs are a crappy substitute for newsgroups for a hi-volume forum like this:
= it’s absurd to dedicate a whole full-feature browser to the task,
= under linux: opera is difficult to read,
= lynx fetches me other contributer’s [supposed to be confidential] email-addresses,
= links doesn’t wait for the cookie-prompts’
= if ya’ll are managing OK, it’s because SAns are herd-followers, with never an
original though, so just by luck the used-by-95%-of-the-population-sytem works OK.
———–
Mikhail Dworkin Fassbinder says:
] It would be the same if I were to sommer call you a
]”hand-flapping queen or a fag’” There is no name for such a
] thing in the Pedi tongue.
Yes indeed, because the other gender/race has a different mind, it has different
concepts and vocabulary. Imagine all the bantu concepts of which my-mense are
completely ignorant of. The blankes & whole international press don’t even realise
that JZ’s machine-gun-song is a Freudian!
I, perhaps arrogantly, consider myself very wise and worldly, and seldom find a
new idea these days. But PdV really is way out in front, with his ideas on gender
issues. Those now attacking him, should pause to consider that perhaps *WE* are
backward in our understanding. You know how the economic crisis hit you because
those who warned of it’s coming were hounded-out by the herd?
Re. herd behaviour: the 4th tested browser: elinks; also fetches other posters’
email addresses eg. Chris = **@**gov.za
IMO this ‘blog replacing newsgroups’ is the same disaster as karetjies replacing
a proper functioning public transport system.