Simelane and Selebi feel the heat

2011-11-05 18:18

It’s never wise to predict the outcome of an appeal court judgment, but prosecutions boss Menzi Simelane should be worried.

So should President Jacob Zuma, who appointed Simelane in the first place, but didn’t deal with the “very simple” matter of Simelane’s fitness for office, as put by Supreme Court of Appeal Judge John Heher on Monday.

Two major legal shows came to Bloemfontein this week – first the DA’s appeal against a ruling that ­declared Simelane fit and proper to be the national director of public prosecutions, and then former police chief Jackie Selebi’s last ­attempt to escape a 15-year prison sentence for his corruption conviction.

Both S-es are in trouble.

Counsel for Zuma, Simelane and Justice Minister Jeff Radebe faced a barrage of critical questions from Heher and his “brothers”, Judges Mahomed Navsa and Clive Plasket.

In comparison, the DA’s advocate, Owen Rogers, had an easy time explaining to the court why the ruling of the North Gauteng High Court against the party should be overturned.

That court found there was not an objective test to determine whether a person is fit and proper to be ­appointed national director of ­public prosecutions.

Rogers argued that the negative findings of the Ginwala Commission against Simelane, the subsequent recommendation by the Public Service Commission that he should face a disciplinary inquiry, and comments by the Supreme Court of Appeal about his conduct while he was the competition commissioner rendered him unfit to lead the National Prosecuting Authority.

Zuma’s advocate, Nazeer Cassim, argued that the president appointed Simelane on the strength of advice from Radebe. This irked judges Navsa, Heher and Plasket.

Why didn’t Zuma “properly interrogate” the serious charges against Simelane himself? Does Zuma know the law requires him to ­appoint a national director of public prosecutions “who must be fit and proper, not maybe”?

Is Zuma passing the buck on a bad appointment to his justice minister?

Despite Cassim’s attempts to convince them that Zuma’s judgement should be trusted, the three judges clearly thought the president gave inadequate thought to Simelane’s suitability before ­appointing him.

As Heher put it: “A value judgement can only be exercised when a person has all the relevant facts ­before him.”

In the Selebi matter, counsel for the former top cop tried hard to ­further discredit the evidence of drug dealer Glenn Agliotti, who ­testified he had paid Selebi.

But Judge Suretta Snyders swiftly reminded advocate Jaap Cilliers SC that Judge Meyer Joffe, in the trial court, found exactly that – that ­Agliotti was not to be trusted.

His evidence was only accepted where it was corroborated.

Snyders was the most vocal of the five judges and cautioned Cilliers on numerous occasions to cut to the chase when he drifted off.

When Cilliers argued that the ­investigation started with false ­accusations, Snyders asked: “So where does that leave us? A trial is designed to flush out those lies.”

Cilliers systematically tried to break down Agliotti’s evidence about every payment made to ­Selebi.

But he struggled to convince the Bench that Dianne Muller, Agliotti’s ex-fiancée, lied when she testified that she saw Selebi receiving R110 000 in cash from the drug dealer.

Even if the court found that the other amounts weren’t corroborated, Muller’s evidence stood out like a rock on solid ground.

Snyders reminded Cilliers of the nature of corruption. “Nobody who is going to commit corruption is ­going to do it by keeping books . . . Agliotti’s evidence was never that he remembered exactly what payments he made for what.”

Snyders told state prosecutor Gerrie Nel that his case was “thin” and that he had to stack up all ­circumstantial evidence, cheque stubs and financial records to show to the court he “had enough”.

Then the judges let him do just that, without interrupting him as regularly as they did with Cilliers.

Both judgments are expected ­before the end of the year.

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