As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.BACK TO TOP