A DISCUSSION OF S V SELEBI 2012 (1) SACR 209 (SCA) AS AN EXAMPLE OF A SUCCESSFUL PROSECUTION IN TERMS OF THE PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT 12 OF 2004

by

SARVESH NAIR

ASSIGNMENT

Submitted in partial fulfilment of the requirements for the subject

Advanced Criminal Law

for the degree

MAGISTER LEGUM

in

LAW

in the

FACULTY OF LAW

at the

NELSON MANDELA METROPOLITAN UNIVERSITY

March 2015

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Table of contents

1. Introduction ..............................................................................................2-3

2. The Law..................………………………………………..………..………..3-5

3. Selebi in the Supreme Court of Appeal........……...………..…………...…5-8

4. Case discussion..…………………………..............................................…8-9

5. Conclusion............…………………………………………………..………9-10

6. Bibliography……………………………………………..........……………10-12

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1 Introduction“Jackie Selebi is finish and klaar”1 and his “agony is finally over.”2 The illustration

below by the renowned Zapiro (Jonathan Shapiro) illustrates a ‘clean handed’ Selebi

having tea and cakes with a ‘dirty handed’ Agliotti with the former declaring that his

hands are none-the-less clean. The swash-buckling penmanship of Zapiro has

landed the cartoonist in hot water on several occasions, however for the countries

amusement and accurate depiction of current affairs, he has remained on track to

deliver yet another all encapsulating cartoon.

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Keeping one's hands clean' is an old 18th century English phrase which referred

specifically to the avoidance of corruption. The Americanised version related to the

nose rather than the hands that people were urged to keep clean.4 None-the-less

both phrases are usually directly related to the world of crime and has become

something of a cliché.5

1 De Vos “Jackie Selebi is Finish and Klaar” December 2011 http://constitutionallyspeaking.co.za/jackie-selebi-is-finish-and-klaar/ (accessed 2015-04-04) 2 Munusamy “The Paradox, Agony and Death of a Comrade’s Comrade, Jackie Selebi” January 2015 http://www.dailymaverick.co.za/article/2015-01-26-the-paradox-agony-and-death-of-a-comrades-comrade-jackie-selebi/#.VSDkoxEcQaI (accessed 2015-04-03)3 Zapiro “South Africa: My Hands are Clean” January 2007 http://www.africancrisis.org/Article.php?ID=10123& (accessed 2015-04-03)4 Martin “Keep your Hands Clean / Keep your Nose Clean” (undated) http://www.phrases.org.uk/meanings/keep-your-hands-clean.html (accessed 2015-04-03) 1. 5 Martin “Keep your Hands Clean / Keep your Nose Clean” (undated) http://www.phrases.org.uk/meanings/keep-your-hands-clean.html (accessed 2015-04-03) 1.

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What follows is a concise discussion on the general offence of corruption as

contained in the Prevention and Combating of Corrupt Activities Act 12 of 2004

(hereafter the PCCA Act) followed by the specific form of corruption, being corrupt

activities relating to public officers. The case of S v Selebi 2012 (1) SACR 209 (SCA)

as an example of a successful prosecution will be addressed.

2 The LawThe common-law crime of bribery is the practice of tendering (and accepting) a

private advantage as a reward of the performance of a duty.6 The crime is committed

by both the person who corrupts another by giving the bribe and by the person who

corruptly receives it.7 Bribery in relation to officials on the one hand is punished

because it is subversive of the democratic principles of public administration and

destroys public confidence and trust in administration.8 Corruption on the other hand

threatens the stability and security of democratic societies, provides a breeding

ground for organised crime and undermines the rights of all citizens.9

The PCCA Act provides for a general offence of corruption and also punishes a

variety of specific forms of corruption. The essence of the general and specific

offences of corruption is the giving or accepting of gratification, a term which includes

but is not limited to money, privilege, influence, benefit of any kind or the avoidance

of loss.10 The PCCA Act ‘unbundles’ specific corrupt activities relating to particular

persons such as public officers, judicial offices, members of the prosecuting

authority, parties to an employment relationship and even witnesses and during

certain proceedings.11

In formulating specific crimes of corruption the legislation simply repeated large

portions of the general crime adding to specific classes or persons or situations.

According to Snyman the essential elements of the general crime of corruption

committed by a recipient are the following: “(i) the acceptance; (ii) of a gratification

6 Burchell Principles of Criminal Law 4ed (2010) 780.7 Burchell Principles of Criminal Law 4ed (2010) 7808 Burchell Principles of Criminal Law 4ed (2010) 7809 Burchell Principles of Criminal Law 4ed (2010) 782; the Preamble of the Prevention and Combating Activities Act 12 of 2004.10 Burchell Principles of Criminal Law 4ed (2010) 782.11 Sections 4, 6, 7, 8, 9, 10 and 11 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (hereafter the PCCA Act).

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(payment or some other benefit); (iii) in order to act in a certain way (the

inducement); (iv) unlawfulness; (v) and intention.”12

While section 3 of the PCCA Act contains the formulation of the general crime of

corruption section 4(1) reads as follows:

“(1) Any- (a) public officer who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or (b) person who, directly or indirectly, gives or agrees or offers to give any gratification to a public officer, whether for the benefit of that public officer or for the benefit of another person,in order to act, personally or by influencing another person so to act, in a manner -

(i) that amounts to the-(aa) illegal, dishonest, unauthorised, incomplete, or biased; or(bb) misuse or selling of information or material acquired in the course of the, exercise,

carrying out or performance of any powers, duties or functions arising out of a constitutional , statutory, contractual or any other legal obligation;(ii) that amounts to -

(aa) the abuse of a position of authority;(bb) a breach of trust; or(cc) the violation of a legal duty or a set of rules;

(iii) designed to achieve an unjustified result; or(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything,

is guilty of the offence of corrupt activities relating to public officers.”

Section 25 of the PCCA Act supports the wide interpretation of s 4 and provides:

“Whenever an accused person is charged with an offence under Part 1, 2, 3

or 4, or section 20 or 21 (in so far as it relates to the aforementioned

offences) of Chapter 2, it is not a valid defence for that accused person to

contend that he or she–

(a) did not have the power, right or opportunity to perform or not to

perform the act in relation to which the gratification was given,

accepted or offered;

(b) accepted or agreed or offered to accept, or gave or

agreed or offered to give the gratification without

intending to perform or not to perform the act in relation to which the

gratification was given, accepted or offered; or

12 Snyman Criminal Law 5ed (2008) 412

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(c) failed to perform or not to perform the act in relation to which the

gratification was given, accepted or offered.”

3 Selebi in the Supreme Court of Appeal

The salient facts of the case are as follows: Mr Jacob Sello Selebi, a former National

Commissioner of Police and former Head of Interpol, was convicted of corruption in

contravention of s 4(1)(a) of the PCCA Act and sentenced to 15 years’ imprisonment

by the South Gauteng High Court.

His conviction arose from his dealings with a Mr Glen Norbet Agliotti. He appealed

his conviction to the Supreme Court of Appeal. The two issues to be decided on

appeal was whether the State succeeded in proving that Mr Selebi received

payments and/or other benefits for himself and other people and whether the State

proved that the appellant reciprocated with a quid pro quo for such payment or

gratification received.13 This in turn required consideration of whether Mr Selebi

received such gratification with a corrupt intention.

On the issue of whether the State succeeded in proving that Selebi received

payments and/or other benefits for himself and other people, the court held that by

taking into account the evidence of Mr Agliotti, albeit that of the corroborated

evidence from a financial investigation, and that of other witnesses, coupled with the

foreign transactions of Selebi, the State had in fact proved beyond a reasonable

doubt that Mr Selebi received payment from Agliotti on four separate instances.14

It appears from the judgment that the strategy of Selebi was to deny that payments

had been made to him. To support the appellants version of events, Mr Agliotti, was

found by the court not to be a credible witness.15 However, the corroborating

evidence of Dianne Muller came to the assistance of the court. Muller, Agliotti’s

former fiancé was according to the court, a credible witness and provided sufficient

corroboration in proving that payment had in actual fact been made to Selebi.16

13 S v Selebi 2012 (1) SACR 209 (SCA) par1 and 6.14 S v Selebi 2012 (1) SACR 209 (SCA) par 17 – 30.15 S v Selebi 2012 (1) SACR 209 (SCA) par 17 – 30.16 S v Selebi 2012 (1) SACR 209 (SCA) par 56.

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The “bizarre spending patterns” of Selebi, which showed that for several months he

hardly spent any of his salary, also added corroboration.17 In January 2005 only

R465.35 and in February 2005 only R188.12 had been paid out of Mr Selebi’s bank

account.18 The court concluded that four separate amounts had been paid to Selebi

which ranged from and included R110 000, R30 000 and R10 000 as well as an

unspecified amount of US Dollars.19 In fact, all the judges agreed that the State had

proved beyond a reasonable doubt that payments had been made from Mr Agliotti to

Mr Selebi.

On the issue of whether the Selebi provided Mr Agliotti with any quid pro quo as a

result of such payment or gratification the court upheld the South Gauteng High

Courts finding that there were four instances which constituted Selebi providing a

benefit to Agliotti in return for the gratification.

These were viz:

(i) A report by the United Kingdom law enforcement authorities;

(ii) A 2005 National Intelligence Estimate (NIE Report);

(iii) An e-mail implicating Agliotti in drug related activities;

(iv) and the attendance of Selebi at meetings and dinners on Agliotti’s request

with his associates.

Arguably the most damning for Selebi was the courts finding that he had shown

Agliotti the National Intelligence Estimate (NIE report). 20 The court further found that

Selebi shared information with Agliotti to enable Agliotti and others to take steps to

protect themselves.21 Selebi called Agliotti a ‘hustler’ and said that if a hustler like

Agliotti offered him money, he would think there is something behind it, that he is

trying to buy his favour.22 Logically, the showing of the report was for the benefit of

Agliotti and his associates.

Snyders J in a separate concurring judgment emphasised that the South Gauteng

High Court, faced with the absence of reliable, detailed evidence from Agliotti,

“exercised what can only be described as extreme caution and only convicted the

17 S v Selebi 2012 (1) SACR 209 (SCA) par 23.18 S v Selebi 2012 (1) SACR 209 (SCA) par 23.19 S v Selebi 2012 (1) SACR 209 (SCA) par 30.20 S v Selebi 2012 (1) SACR 209 (SCA) par 37.21 S v Selebi 2012 (1) SACR 209 (SCA) par 37.22 S v Selebi 2012 (1) SACR 209 (SCA) par 109.

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appellant on the basis of a few payments for which clear corroboration existed”23 and

continued to state the following:

“Insofar as the general corroboration relied on by the trial court is

concerned, I am of the view that the trial court, in applying the rules of

caution and seeking corroboration, was benevolent to the appellant

and preferred to refrain from convicting the appellant in relation to a

specific payment when the faintest doubt was raised. Thus the

appellant was not convicted in relation to four more cheques that

reflected inscriptions that could be interpreted as references to the

appellant.”24

Snyders J, in concluding that the relationship between Agliotti and Selebi was neither

a pure friendship or a professional one concluded that:

“One does not expect the National Commissioner of Police to take his

friend along on police business; to take his friend and informer along

to the very meeting where the verification of the informer’s information

is to take place; to meet his friend to shop together during office hours;

to favour his friend by attending to minor complaints for which

structures exist to be dealt with; and to divulge information regarding

police operations to his friend’s friends. If the relationship was so close

to have made these occurrences ordinary, one would have expected it

to spill over to the families of the appellant and Agliotti, which did not

happen.”25

4 Case discussion

The Selebi case is remarkable in a couple of ways. As illustrated supra corruption

threatens the stability and security of democratic societies, provides a breeding

ground for organised crime and undermines the rights of all citizens.26

The case has demonstrated that the former South African Police Commissioner was

corruptible. It also demonstrated that the law is not static with the prosecutor

executing his mandate and securing a successful conviction. The fact that the Police 23 S v Selebi 2012 (1) SACR 209 (SCA) par 60.24 S v Selebi 2012 (1) SACR 209 (SCA) par 71.25 S v Selebi 2012 (1) SACR 209 (SCA) par 110.26 See heading 2 The Law.

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Commissioner was successfully prosecuted is something that would happen in very

few countries as it is notoriously difficult to investigate and prosecute members of the

South African Police Service (SAPS) who usually have the resources to derail such

an investigation.27 Credit in this regard can be given to the now disbanded unit, the

Scorpions.

At common-law, the crime is committed by both the person who corrupts another by

giving the bribe and by the person who corruptly receives it.28 While Selebi sustained

a conviction and was sentenced to imprisonment, it is therefore further remarkable

that Agliotti will not. Agliotti was found not to be a truthful witness29 and as far as the

public is aware, had not received indemnity from prosecution.30 The question why

Agliotti was not prosecuted remains unanswered.

According to De Voss, there might be good reasons why the authorities went after

Selebi and in effect let Agliotti off the hook.31 One reason was that Agliotti was

prosecuted for his involvement in the Kebble murder while those who confessed to

having committed the murder were granted indemnity. Yet again, Agliotti escaped

prosecution.

Another reason may be that a National Police Commissioner is more blameworthy

than an ordinary person for undermining the Rule of Law. More directly put “a

crooked head cop subverts the law and undermines respect for the Rule of Law in a

way that the actions of an ordinary gangster could never do.”32

27 De Vos “Jackie Selebi is Finish and Klaar” December 2011 http://constitutionallyspeaking.co.za/jackie-selebi-is-finish-and-klaar/ (accessed 2015-04-04)28 See heading 2.29 S v Selebi 2012 (1) SACR 209 (SCA) par 17 – 30.30 De Vos “Jackie Selebi is Finish and Klaar” December 2011 http://constitutionallyspeaking.co.za/jackie-selebi-is-finish-and-klaar/ (accessed 2015-04-04) 1.31 De Vos “Jackie Selebi is Finish and Klaar” December 2011 http://constitutionallyspeaking.co.za/jackie-selebi-is-finish-and-klaar/ (accessed 2015-04-04) 1.32 De Vos “Jackie Selebi is Finish and Klaar” December 2011 http://constitutionallyspeaking.co.za/jackie-selebi-is-finish-and-klaar/ (accessed 2015-04-04) 1.

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6 ConclusionThe Supreme Court of Appeal held that the State established beyond reasonable

doubt that the gifts and payments were accepted by Selebi with the requisite corrupt

intent. While this would normally fall under the rubric of the general crime of

corruption, Selebi’s status as a senior public official made it possible to secure his

conviction under the specific offence of corruption in respect of public officials.33 From

the time Selebi was charged up to the point where he lost his appeal, Selebi did not

believe he would be imprisoned.34 He believed that when he took the witness stand,

that he would embarrass the prosecution and the case against him would collapse.35

For one reason or another, Selebi’s agony is finally over. It seems that the old adage

that dead men tell no tales rings true once again.

33 Kemp, Walker, Palmer, Baqwa, Gevers, Leslie and Seynberg Criminal Law in South Africa (2012) Oxford 217.34 Munusamy “The Paradox, Agony and Death of a Comrade’s Comrade, Jackie Selebi” January 2015 http://www.dailymaverick.co.za/article/2015-01-26-the-paradox-agony-and-death-of-a-comrades-comrade-jackie-selebi/#.VSDkoxEcQaI (accessed 2015-04-03)35 Ibid.

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BIBLIOGRAPHY

LEGISLATION

The Constitution of the Republic of South Africa, 1996

Prevention and Combating of Corrupt Activities Act 12 of 2004

CASES

S v Selebi 2012 (1) SACR 209 (SCA)

BOOKS

Burchell Principles of Criminal Law 4ed (2010) Jut & Co CapeTown

Currie and De Waal The Bill of Rights Handbook 6ed (2014) Juta & Co Cape Town.

Govindjee and Vranken (eds) Introduction to Human Rights Law (2009) LexisNexis

Durban

Kemp, Walker, Palmer, Baqwa, Gevers, Leslie and Seynberg Criminal Law in South

Africa (2012) Oxford

Snyman Criminal Law 5ed (2008) LexisNexis Durban

WEBSITE SOURCES

De Vos “Jackie Selebi is Finish and Klaar” December 2011

http://constitutionallyspeaking.co.za/jackie-selebi-is-finish-and-klaar/ (accessed 2015-

04-04)

Munusamy “The Paradox, Agony and Death of a Comrade’s Comrade, Jackie Selebi”

January 2015 http://www.dailymaverick.co.za/article/2015-01-26-the-paradox-agony-

and-death-of-a-comrades-comrade-jackie-selebi/#.VSDkoxEcQaI (accessed 2015-

04-03)

Zapiro “South Africa: My Hands are Clean” January 2007

http://www.africancrisis.org/Article.php?ID=10123& (accessed 2015-04-03)

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Martin “Keep your Hands Clean / Keep your Nose Clean” (undated)

http://www.phrases.org.uk/meanings/keep-your-hands-clean.html (accessed 2015-

04-03)

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