An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Jackie Selebi sure knows how to grab the headlines. He was at it again yesterday making all kinds of earth-shattering allegations that, if they were to be true, would rock South Africa and would further discredit the National Prosecuting Authority and two of its erstwhile bosses.
We do not know yet whether former Police Commissioner, Jackie Selebi, is guilty of corruption and defeating the ends of justice as alleged by the State. The State alleges that Selebi made R1.2-million from corrupt relationships with druglord Glen Agliotti, slain mining magnate Brett Kebble and former Hyundai boss Billy Rautenbach. We also do not know whether the claims by Selebi that both Bulelani Ngcuka and Vusi Pikoli pursued the case against him because they themselves are corrupt is true. That is for a court to decide.
However, the claim by Selebi that he was being prosecuted after discovering that Pikoli and his predecessor, Bulelani Ngcuka, had improper business dealings with dodgy businessmen, does (at least at first glance) seem curious from a legal perspective. Selebi made these allegations not in an attempt to have the case against him thrown out. In the light of the SCA judgment in the Zuma case that a prosecution does not become unlawful “merely” because charges were brought for an ulterior purpose – as long as the State brought the charges in order to secure a criminal conviction – this is a wise move.
But why is Selebi making these claims as part of his defence? Is he making a legal argument or is he rather playing a political game in order to garner sympathy by attacking two men who are rather unpopular with the crowd currently in charge of the country? It is difficult to say.
In order to secure a conviction in the corruption case against Selebi, the State will have to convince the court beyond reasonable doubt that Selebi received the more than R1.2 million from the dodgy “businessmen”. It will then have to prove that Selebi did corrupt favours for these men and that there was a link between the payments and the favours, thus establishing Selebi’s intention to be part of the corruption.
In order to try and secure a conviction the state will call a very long list of witnesses. (See here and here.) The list does not include the name of Buleleni Ngcuka, but does include the name of Vusi Pikoli. One imagines that in order to stave off conviction Selebi will have to discredit a fair number of the witnesses that will come to testify about the R1.2 million allegedly received by Selebi and about the favours allegedly done by Selebi in return.
If the State has strong evidence – including documentary evidence – of the money allegedly received from the various criminals and underworld figures, then the case will probably turn on whether these payments could be linked to favours done by Selebi. The crux of such evidence may well have to be provided by witnesses who have concluded plea bargains with either Ngcuka or Pikoli.
I have no inside knowledge of the strategy employed by the defense, but from the available evidence it seems plausible that Selebi is attacking the credibility of Ngcuka and Pikoli not so much in an attempt merely to discredit them, but rather to try and undermine the credibility of the evidence provided by key witnesses who had concluded plea bargains with the state, including Glen Agliotti and Billy Rautenbach who will have first hand evidence of any favours done by Selebi – if indeed favours were done.
The Selebi defense is therefore perhaps more astute than it seems. If the plea bargains can be attacked and the credibility of the witnesses who entered into such plea bargains can be destroyed, then Selebi might have a much better chance of being acquitted.
(As an aside, I am rather disappointed by Selebi for employing Advocate Jaap Cilliers SC to defend him. This shows a shocking disregard for the need to transform the legal system. How can talented black lawyers gain the necessary experience required to be elevated to the bench if criminal defendents like Selebi fail to employ them and choose instead to make use of the services of pale males. Is Selebi perhaps a victim of internalised racism and does he perhaps wrongly assume that a senior white man would provide him with a better defense than any of the many talented but less experienced black counterparts? I am sure Advocates for Transformation and the Black Lawyers Association will shortly issue angry statements condemning Selebi for his racism. Besides, was Kemp J kemp to0 busy to take the case? Oops, for a moment there I forgot that President Jacob Zuma’s lawyer was also white.)
In any case, time will tell whether this strategy will work. Personally I am so confused by all the allegations and counter allegations in this case, that I have no clue which way it will go and whether either Selebi or the NPA will emerge vindicated or whether Selebi will manage to make his allegations stick.
On the one hand that great legal expert, Thabo Mbeki, claimed that he had not seen any credible evidence of any wrongdoing by Selebi and therefore could not suspend him – even after being fully briefed by Pikoli about the evidence against Selebi gathered by the State. On the other, a panel of eminent legal experts (admittedly perhaps not as well qualified as Mbeki in matters of criminality) who was asked to looked at the evidence by Mokotedhi Mpshe, concluded that there was a prima facie case against Selebi and that he should be prosecuted.
Move over 7de Laan and Generations. The Selebi show is coming to town.BACK TO TOP