‘Real issue is why Selebi is not being prosecuted’

A top legal academic has dismissed as ‘a red herring” suggestions that suspended National Director of Public Prosecutions (NDPP) Vusi Pikoli has jeopardised South Africa’s national security interests by indemnifying and plea-bargaining with criminals in exchange for their testimony.

The University of KwaZulu-Natal’s Professor Robin Palmer emphasised that prosecutors had wide discretion to offer suspects possible immunity as state witnesses, as a way of bringing ‘bigger fish” to book. Their discretion also extended to plea and sentence agreements, largely to shorten complex and potentially long and costly trials.

The final decision on indemnities and plea agreements, in terms of sections 204 and 105 of the Criminal Procedures Act respectively, lay with the trial judge, not Pikoli. Judges could strike down any deal.

”This is a red herring,” Palmer said. ‘The real issue is why [police National Commissioner Jackie] Selebi is not being prosecuted.”

One of South Africa’s most prominent constitutional lawyers, who asked to remain anonymous, said that every democratic society used the evidence of lesser accomplices to secure the conviction of important offenders.

This was a necessary evil, particularly in dealing with powerful suspects in high places.

But the lawyer emphasised that Pikoli himself had no power to grant immunity to anyone. ‘All he can do to secure evidence from an accomplice is to say: if the matter goes to trial, you will be offered indemnity. But that, ultimately, is for the judge to determine, on the basis of whether your testimony is fair and honest.”

The NDPP was constitutionally independent and the ‘who and why” of prosecutions was within his discretion, he said.

The issue of immunities and plea bargains has moved to centre stage in the drama surrounding the Scorpions investigation of Selebi and the related suspension of Pikoli two weeks ago.

The terms of reference of the Ginwala Commission, appointed by President Thabo Mbeki to weigh Pikoli’s fitness for office, require it to determine whether ‘in exercising his discretion to prosecute offenders, [he] had sufficient regard to the nature and extent of the threat posed by organised crime to the national security of the Republic”.

The terms also allude to Pikoli ‘taking decisions to grant immunity from prosecution or enter plea bargaining arrangements with persons who are allegedly involved in illegal activies which constitute organised crime”.

This is apparently a reference to the Scorpions’ offer of a suspended jail sentence to alleged crime syndicate boss Glenn Agliotti, and possible indemnity for alleged hitmen Mikey Schultz, Nigel McGurk and Faizel Smith, in exchange for evidence in the Brett Kebble murder case.

The commission is also likely to scrutinise the Scorpions’ plea negotiation with Clinton Nassif, a co-accused in a major East Rand drug trial.

In both cases the Scorpions’ strategy was apparently to negotiate testimony implicating Selebi in links with organised crime.

Asked if letting four murder accused off the hook was not too high a price to pay, Palmer said: ‘What’s more important: a few minor mafiosi or the alleged involvement of the police chief in organised crime, which could have implications for our criminal justice system over many years?”

He explained that in section 204 proceedings the judge could decide at the end of the case that the quality of a witness’s evidence did not warrant immunity.

In plea bargains the permission of specially appointed senior prosecutors was required, with a formal plea and sentence agreement between the prosecuting authorities, the accused and the accused’s lawyer.

This set out the facts of the case and provided for a guilty plea and an agreed sentence — which was generally more lenient than if the trial had gone to term. However, the trial judge could throw out the agreement, rejecting the plea or finding the sentence unjust.

The implication is that the Ginwala Commission, headed by ANC national executive committee member Frene Ginwala, has been asked to determine matters normally decided by a judge, often at the end of a trial.

Palmer pointed out that the majority of criminal cases in the United States were now finalised in terms of written plea and sentence agreements. The wider application of the system in South Africa was already affecting local conviction rates.

Pamela Stein, a partner at legal firm Webber Wentzel Bowens, pointed out that former NDPP Bulelani Ngcuka had issued a directive on when plea bargains should be entered into. ‘I cannot believe agreements would be reached if the NDPP was unsure they would stand up in court,” Stein said.