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.
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.BACK TO TOP