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.
Why did Minister Jeff Radebe fail to address what appears to be one of the most egregious acts of dishonesty on the part of Adv Menzi Simelane? In his half-hearted defense of Adv Simelani, Radebe failed to explain why Simelane did not produce a letter, written by then President Thabo Mbeki to the then Minister of Justice regarding the Jackie Selebi case – even after being lawfully requested to do so.
On 22 October 2007 Vusi Pikoli’s lawyers wrote a letter to Adv Menzi Simelani, then Director General in the Department of Justice. The letter stated, inter alia:
May we please have copies of all communications and other documents relating the investigation and prosecution of Mr Selebi which you or your Department may have sent to or received from the president or anyone in the Presidency at any time since 15 September….
This request seems pretty clear. Any half-way honest person would have understood what it meant. It must be conceded that a careless or overworked person might not have provided all the documents as requested because of an oversight or negligence.
A dishonest person, on the other hand, would have deliberately chosen not to provide all the documents as requested or would have followed instructions from his boss to be dishonest and to lie. Unless something far more sinister is at work here, Adv Simelane’s failure to produce this letter – a failure curiously not addressed by Radebe at all – suggests that he is a man who will deliberately try to mislead legal opponents by hiding information lawfully requested by them in order to protect the President.
During cross examination Simelane first conceded that the letter allegedly written by thenPresident Mbeki falls squarely within the ambit of documents requested. Yet Simelane wrote back after the request mentioned above was received and stated as follows:
We are not in posession of any documents relating to the investigation of the National Commissioner of Police, save for reports prepared by your client [Pikoli].
When first asked by Trengove why the letter was not produced Simelane said:
Well, I wasn’t informed about the letter, I became aware of the letter much later.
But later Simelane conceded that he was aware of the letter, which means his first statement was not truthful. Although he had not read it, Simelane claimed, he knew the President had sent a letter to the Minister. It was this very letter which led to the writing of another letter by Simelane which was later signed by the Minister (ordering Pikoli to stop the arrest of Selebi). Yet he did not provide Pikoli’s lawyers with the letter as requested. Worse, he stated that there was no such documents in their possession.
When confronted about this, Simelane again changed his story and said that he did not think the letter by the President, requesting more information on the Selebi matter, related in any way to the investigation against Mr Selebi. This is unfortunately not a line of argument that could reasonably be pursued without losing every shred of credibility one might have had as a witness.
Trengove then pounces:
Trengove: You said: we have no such documents in our possession. And I want to know who decided to tell that lie. You or the Minister?
Later Simelane contradicts himself yet again and tells another wopper when he says:
No, we didn’t, we didn’t deny that the letter was there.
This is of course not correct. Simelane had written to Pikoli’s lawyers denying that there were any documents relating to the Selebi investigation in the posession of the Department. Yet the President’s letter – which he admitted he was aware of – dealt directly with the Selebi investigation. With Adv Trengove we should ask: Did Simelane decided to lie of his own accord or was he instructed to lie by the Minister, the President or any legal advisor of the President?
What makes this so curious is that the letter allegedly written by then President Mbeki to the Minister of Justice one day before the Minister of Justice signed a letter drafted by Simelane instructing Pikoli not to proceed with the arrest of Selebi does not contain the smoking gun evidence Pikoli had hoped for. The content of the Ministers letter, which contained the unlawful instruction to Pikoli not to proceed with the arrest of Selebi, seems to go much further than the request contained in Mbeki’s letter, which merely asked for more information on the Selebi case (information, we now know, which the President had already been given by Pikoli).
A conspiracy theory is doing the rounds that Simelane had not produced the letter because it contained an illegal instruction from then President Mbeki to have the arrest of Selebi stopped. According to this theory, another letter was conjured up after the fact when it became clear that it would have had to be produced to the Ginwala inquiry.
I am not sure I buy this. Surely Mbeki and his advisers would not have deliberately concocted fake evidence to escape responsibility for their unlawful actions? A more plausible explanation is that Simelane decided to lie about the existence of the letter because it showed that the suspension of Pikoli was directly related to the pending arrest of Selebi. At the time, President Mbeki had denied that the suspension of Pikoli had anything to do with the impending arrest of Selebi and this letter provided proof that Mbeki’s claim could not be sustained.
To protect the person who had appointed him, Simelane then misled Pikoli and the Inquiry by not producing the letter written by the President – despite being requested to do so and despite having a legal duty to do so.
Minister Radebe failed to explain why this action by Simelane does not warrant disciplinary action against Simelane. This is because there is no plausible explanation for this failure to produce evidence which Simelane had a legal duty to hand over.
This sorry tale provides more proof that Simelane is a man who is so loyal to his political bosses that he would try to hide the existence of evidence that would make his boss look bad. No wonder he was purportedly appointed by President Jacob Zuma as National Director of Public Prosecutions. With such a guy heading the NPA, President Zuma clearly has nothing to worry about on the legal front – even if the decision to drop charges against him is declared invalid.BACK TO TOP