Questions raised over whether Jaap Cilliers should have recused himself from NDPP interview

2018-11-15 17:25
Advocate Andrea Johnson is seen in the High Court. (Herman Verwey, Gallo Images, Foto24, file)

Advocate Andrea Johnson is seen in the High Court. (Herman Verwey, Gallo Images, Foto24, file)

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Concerns have been raised around whether advocate Jaap Cilliers SC should have recused himself from the interview of prosecutor Andrea Johnson for the position of National Director of Public Prosecutions (NDPP). 

Interviews are currently underway at the Union Buildings, with 11 candidates being canvassed by a panel headed by Energy Minister Jeff Radebe. 

Cilliers was brought in as the last minute replacement for advocate Barry Roux, who was the representative of the General Council of the Bar on the panel. Roux had a scheduling conflict and had to appear in court this week. 

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Cilliers represented former police commissioner Jackie Selebi in his corruption trial. Johnson was part of the State team, along with Gerrie Nel, who successfully prosecuted Selebi in 2010. Selebi was convicted of corruption and sent to prison for 15 years. 

The prosecution of Selebi was highly acrimonious and seen as a proxy for the battle between the SAPS and the Directorate of Special Operations (the Scorpions) at the time.

'Immunity for testimony'

Selebi argued that he was being prosecuted because he had advocated for the Scorpions to be shut down, and that Nel and his team were going after him as part of a vendetta. 

Johnson faced numerous questions during her interview about the decision to grant section 204 (of the Criminal Procedure Act) indemnity deals from prosecution to various players in the Selebi/Kebble investigations.

READ: NDPP hopeful Andrea Johnson believes not even the pope can save the NPA

Mikey Schultz, Nigel McGurk and Kappie Smith were granted indemnity for their testimony against Glenn Agliotti for the murder of businessman Brett Kebble.

Agliotti was offered immunity for his testimony against Selebi, but Judge Meyer Joffe did not grant him his "204". Agliotti was never prosecuted for corrupting Selebi.

During the interview process, Cilliers told Johnson that he was concerned that she and her team had "negotiated" and entered into an agreement with people by telling them that, if they testified against the late Selebi, they would get an exemption.

"In the end, you couldn't even call these people as witnesses and at the end, they couldn't provide you with the information, and yet you agreed to give them an exemption.

"In the end, you said Mr Aglotti was found guilty of drug trafficking, and he was not even sent to jail.

"In the end, the only person who was really, enthusiastically prosecuted was indeed the late commissioner Selebi. The murderers got out scot-free, the drug traffickers got out scot-free," Cilliers told Johnson.

But Johnson defended herself and said: "I have to add that not everyone got scot-free but, in terms of the bigger matter, the national commissioner got prosecuted… our evidence was tested in an open court."

'Lying witnesses'

Cilliers said he was not criticising the courts, but merely trying to find out how Johnson would exercise her discretion if she was appointed to the top job.

"To me, the only relevance is it gives us a glimpse of who you will be as the NDPP in the exercise of your discretion. I don't want to start a new prosecution against anybody," Cilliers said.

However, shortly after her interview, Johnson told News24 that Cilliers should have "refrained" from his line of questioning. 

"I think it felt like he was trying to vindicate either himself or the late accused, but that was not going to happen. 

"I think he should have refrained from those questions but, at the same time, I have to be fair. If you want to apply for the position of NDPP, you've got to take questions that came your way. If he chose not to be objective or to have refrained from that position, that is his bad choice.

"Everyone comes with a different view and I accepted he'd have a different view. I had to be fair. We did what was right at the time," she said.

Meanwhile, forensic consultant Paul O'Sullivan, who investigated Selebi for years, told News24 that Cilliers was not "a fit and proper person to be harassing his opponents". 

"He's taking a swipe at his opponent, to try and settle an old score. It leaves him ethically wanting and he should just not have done it. In my opinion, there should not have been any defence counsel there for interviews, as it gives them an opportunity to get cosy with some applicants and attack others."

'Merits of Mdluli case'

O'Sullivan also raised concerns around Cilliers' questioning on Wednesday of South Gauteng Director of Public Prosecutions Andrew Chauke and his decision to withdraw murder charges against former police commissioner Richard Mdluli.

"He specifically mentioned murder and then fraud charges. He was wrong. It was [suspended deputy prosecution boss Nomgcobo] Jiba that dropped the fraud charges, which led to the SCA judgment, not Chauke," said O'Sullivan.

He said Cilliers had asked questions directly pertaining to the merits of the Mdluli case, which is currently before the courts.

"It is highly unprofessional to openly discuss merits of a case that is before the courts, and could even amount to the offence of defeating the ends of justice," he added.

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Read more on:    npa  |  paul o'sullivan  |  jackie selebi  |  courts

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