Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
13 April 2010

What now for Jackie Selebi

It came as no surprise that Judge Meyer Joffe decided yesterday to reject the application by former Police Commissioner, Jackie Selebi, to have the corruption charges against him dismissed. Selebi will now have to take the stand in his own defense because he has to convince the court that an array of  state witnesses lied when they claimed he received money and other benefits worth well over R1 million from Glen Agliotti. Selebi maintains that he only ever received a Swiss Army Knife from Agliotti.

Selebi is being prosecuted partly in terms of the old Corruption Act of 1992 and partly in terms of the new Prevention and Combating of Corrupt Activities Act of 2004. The new Act is an excellent piece of legislation that casts the net for corruption very wide indeed. Any public official who accepts any gratification – which would include money, donations, gifts or any other real or pretended aid – and then, because of receiving that gratification, acts illegally, dishonestly or in a biased manner will be guilty of the crime of corruption. A public official who had taken such a gratification and had then acted in a manner that amounted to an abuse of power or a breach of trust would also be guilty of the offence of corruption.

The Act makes clear that when the state has proven that a public official has taken any money or other benefit from a private citizen, that public official will be in deep trouble if it can be shown that the public official then performed or did not perform an official act or even where that official showed “any favour or disfavour” to any person in performing a function as a public official.

I suspect this is why Selebi’s lawyers have put up the Swiss Army Knife defence. They claim that Selebi has never received any money or other benefit (like clothes or donations for an Interpol dinner) for either himself or his family from Agliotti, bar a Swiss Army Knife which Agliotti allegedly gave him. (Agliotti said during his testimony that he would never have given Selebi such a cheap gift!)

This defence might have seemed plausible because there is no paper trial of money changing hands between Agliotti and Selebi (if money ever did change hands) and because Agliotti – as the state’s star witness – has a serious credibility problem. The problem for Selebi and the defense is that at least some of Agliotti’s testimony about the “gifts” and “donations” given to Selebi was corroborated by other witnesses who seemed far more credible than Agliotti. The blanket denial by Selebi of ever receiving any money or other benefits from Agliotti might therefore come back to haunt him as it might affect Selebi’s credibility as a witness.

But I suspect Selebi had no other choice but to deny ever receiving any money or benefits from Agliotti. This is because the 2004 corruption act  casts the net so wide and evidence – including phone records and testimony about how Agliotti used his connections with Selebi to arrange introduction between Selebi and various crooked businessmen – seem to show that Agliotti did indeed receive special treatment from Selebi (had thus “showed him a favour”). Once the state has thus shown beyond reasonable doubt that Selebi had received any “gratification” from Agliotti, Selebi would be in serious trouble.

That is why Selebi will now have to take the stand to deny ever receieving any money from Agliotti. This is, of course, a gamble as Selebi will be subjected to cross examination. Apart from some weirdo’s on the Judicial Services Commission (JSC), most lawyers agree that good cross-examination can be rather lethal to anyone who is not telling the truth. This is because it becomes very difficult to keep one’s story straight while being cross-examined when one is not telling the truth. (Just ask Menzi Simelane whose credibility was completely destroyed by Wim Trengove during cross examination at the Ginwala Inqiury.)

It might be that both Agliotti and the other state witnesses are lying and that Selebi really never received any “gratification” from Agliotti. In that case, Selebi should be fine as he will only have to tell his story and stick to it. If, however, he is lying about receiving any money or benefits from Agliotti his credibility might be severely compromised under cross-examination. Because he is denying receiving the money, it is also not possible for Selebi to argue that he did receive the money and that he did do some favours for Agliotti  but that he had no intention of being corrupt.

The blanket denial about receiving any money from Agliotti has thus boxed in the defence. Selebi will have to give the performance of a life time on the stand. Otherwise he might have to develop deadly hypertension and request medical parole to die a dignified and quiet death in order to avoid a 15 year prison sentence.

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