Was he wrong to enter a gun battle with just a Swiss army knife?
Jackie Selebi will soon find out when Judge Meyer Joffe rules on whether the state has produced evidence on which the former top cop might “reasonably be convicted”.
Selebi’s counsel, Jaap Cilliers, argued this week in the South Gauteng High Court that the charges against his client should be thrown out on the basis that Selebi has no case to answer.
In light of the Selebi team’s strategy to deny everything, this was a risky move. Apart from a Swiss army knife, the former police chief denies receiving anything from Glenn Agliotti (Agliotti, naturally, rejected the suggestion that he would have bought his old friend such a “cheap” gift).
If Joffe finds that any of the state’s evidence holds water, Selebi will have little choice but to climb into the witness box of court 4B. This is a scenario he may have wanted to avoid.
The strategy of blanket denials pits Selebi’s word against that of 18 state witnesses. No wonder Cilliers spent almost 80% of his argument in this week’s discharge application trashing Agliotti’s credibility.
Selebi’s argument in favour of a discharge is this: Agliotti is the state’s main and only witness on a number of allegations. He is also a conniving liar and crook and Judge Joffe should not believe a word he said.
Chief prosecutor Gerrie Nel strongly opposed this line of argument. According to him, Agliotti’s version has been corroborated on a number of occasions by other state witnesses, most importantly Agliotti’s former fiancée, Dianne Muller, who testified that she saw Selebi taking a R110 000 bribe.
The state has shown on a number of occasions Selebi’s willingness to assist Agliotti, and the former commissioner must explain why this, coupled with big questions about his eccentric cash flow, should not be construed as corruption.
Selebi’s “Swiss army knife defence”, of calling everybody except himself a liar, may come back to bite him.
In its heads of argument, the state explains his “dilemma”: “The accused’s plea explanation is nothing more than a bare denial coupled with allegations of a malicious prosecution. The accused has denied that he ever received money from Agliotti. This creates a dilemma for the defence, because the reason he received money and his intentions during the receipt thereof are of no consequence. His defence is simply that he has not received any money.”
This may lessen the chances of a successful discharge application. Even if Joffe rejects Agliotti’s evidence in its totality he could still accept evidence that Selebi received clothing or cash. He would then need to hear Selebi’s side of the story to determine if he had mens rea — a guilty state of mind.
The Prevention and Combating of Corrupt Activities Act of 2004, under which Selebi is charged, makes provision for the corruptor and/or the corruptee to be charged together or separately and does not require an “agreement” between the parties.
In argument Cilliers attacked the state for persisting with Selebi’s prosecution even though Agliotti and controversial Zimbabwean businessman Billy Rautenbach denied ever bribing the former police chief.
But, argued Nel, this is not the point. Even if his alleged corruptors do not understand South Africa’s anti-corruption legislation and paid him with clean intentions, the court has to establish only whether Selebi received gratification with a guilty mind.
During his interaction with Cilliers, Joffe addressed the question of determining Selebi’s state of mind if he accepts that the police chief indeed received gifts or cash. “How do I assess the defendant’s [Selebi’s] mind without hearing him?” asked Joffe, to which Cilliers replied: “Our position is that the defendant denies receiving gratification.”
Expect to hear that question again if Joffe refuses to acquit Selebi.