Six months ago the corruption charges against President Jacob Zuma were dropped after secret tapes of telephone conversations intercepted by South Africa’s intelligence services mysteriously landed up at his attorney’s office.
This week former top cop Jackie Selebi gave the clearest indication yet that he, too, would rely on the questionable assistance of the country’s spy agencies to get off the hook on serious corruption charges.
The question is whether South Africa’s spy agencies have become role-players in determining the outcome of high-profile criminal trials.
It is no secret that the intelligence service became entangled in the ruling party’s dirty succession battles (and even eavesdropped on journalists as part of their brief), but secret tapes, recordings and videos leaked specifically to benefit powerful accused persons take us into a even more daunting era.
Selebi’s shock application for Judge Meyer Joffe’s recusal should be seen in this light. Joffe became increasingly sceptical about the growing number of secret videotapes featuring in the trial and started clamping down on advocate Jaap Cilliers’s line of questioning during his cross-examination of Glenn Agliotti. The judge even suggested that a third force was attempting to influence the outcome of the trial by leaking videos to the media, particularly City Press.
Agliotti, who features on all the videotapes, has already conceded that lying is one of his prime talents, but Selebi wants his credibility further crushed by the admittance of intelligence material as evidence.
Joffe’s mounting irritation with the appearance of new spy tapes was enough to convince Selebi on Wednesday that the judge is biased towards the state.
His application for Joffe’s recusal is strategic, but may well boomerang if the judge decides there are no compelling reasons for him to withdraw. Selebi may appeal such a decision, delaying the trial for several months.
But it is difficult to see how Joffe can stay on adjudicating such a high-profile trial when the accused believes he is prejudiced. A new judge would give Selebi the opportunity to revise his defence strategy and attempt once more to trash Agliotti’s evidence with the three spy tapes at his disposal.
- A 2003 recording of a meeting between Agliotti and police crime intelligence assistant commissioner Mulangi Mphego. In this secret recording Agliotti denies that part of the more than $1-million he was paid by the Kebble family and their companies flowed to Selebi and admits using Selebi’s name to enrich himself;
- A secret recording of a meeting at Sandton’s Balalaika Hotel between Agliotti, Mphego, former National Intelligence Agency head Manala Manzini and his deputy Arthur Fraser on January 4 last year. City Press reported on Sunday that Agliotti admits on this video that he drew up the disputed affidavit used by Selebi to attack the Scorpions in court last year; and
- A recorded interview by Mphego of Agliotti at the Villa Via Hotel in Sandton four days later, on January 7. During the interview Agliotti slams the Scorpions for plotting against him and Selebi.
The first video was admitted as evidence this week, the second has not been shown to the court and the third was accepted by Joffe as “preliminary evidence”.
Mphego plays a central role in all three and it would not be far-fetched to call him Selebi’s spy. The Scorpions are convinced he defeated the ends of justice by taping Agliotti and he is being charged in the Randburg Magistrate’s Court on December 2.
It is important to remember that Selebi referred Agliotti to Mphego and the then head of crime intelligence, Rayman Lalla, in 2003 when Agliotti asked him for assistance in the Kebbles’ fight with DRDGold. According to Agliotti, Mphego also became close to John Stratton — Brett Kebble’s right-hand man at JCI.
Mphego’s modus operandi and loyalty to Selebi are revealed in the 2003 recording played in court on Tuesday. “I am government,” he is heard telling Agliotti. “And I am responsible for the commissioner, Jackie Selebi.” He then tells Agliotti that he has picked up conversations concerning Kebble money for Selebi from “monitoring a whole lot of communication —” that was gathered by “illegal or legal” means.
Mphego brags about his access: “I can tell you, Glenn, with all honesty, we listen to everything, contrary to many perceptions, we listen to everything and we see everything. It is impossible for us not to know —”
The emergence of the spy tapes must be seen against the background of the turf battle between the Scorpions and the police. The former believed Selebi was a crook and had to be nailed at all costs, whereas the police saw the investigation of Selebi as an underhanded attempt to save the unit.
The Scorpions embarked on Operation Bad Guys, and the police initiated Operation Destroy Lucifer. Bad Guys brought Selebi to court, whereas Destroy Lucifer procured videos to show Selebi’s innocence.
And Joffe was left to distinguish the cops from the robbers. Will he be the first judicial casualty in this dirty fight? We’ll know in a week’s time.
No kid gloves
Proceedings in courtroom 4B of the South Gauteng High Court often resemble a detached father mediating between his two sons, writes Ilham Rawoot.
Judge Meyer Joffe is a religious, community-oriented man who became upset at the thought of outside forces influencing court proceedings and when told the story of an innocent man allegedly framed for drug possession.
He has a stern, sometimes irritable, demeanour and a dry, sarcastic sense of humour, usually exercised at the expense of prosecutor Gerrie Nel and defence counsel Jaap Cilliers.
But the person for whom this trial is the furthest thing from a joke, Jackie Selebi, seems to think that Joffe is showing a little less love than he should to one son. Joffe has shot Cilliers down several times and overruled most of his objections — but then again, Cilliers does object quite a bit.
Joffe dismissed one objection by Cilliers merely by saying: “Well, just carry on, Mr Nel, please”; and when Cilliers offered to help him find an annotation, he said: “I don’t need your assistance.” Cilliers shook his head, “flabbergasted”.
On Tuesday Cilliers was not allowed to “fully” cross-examine Agliotti on the contents of a newspaper article. When the advocate protested, Joffe said in the strictest tone he has employed so far: “Remember, Mr Cilliers, that you are addressing me, and not the witness, nor anyone else.”
So is Selebi being overly sensitive? After all, Joffe did agree provisionally to allow the controversial video recording of an interview between Agliotti and Mphego to be admitted as “preliminary evidence”, leaving the state to bite its nails as its star witness was, yet again, exposed as a liar.
And Nel would certainly not say that Joffe has treated him with kid gloves. He was chastised for lacking “collegiality” towards Cilliers and has been the butt of many of Joffe’s jokes, most of which he brought upon himself because of silly mistakes, often confusing both the court and himself. It’s a week’s wait to see if Cilliers gets his way or if he learns that if you can’t stand the heat, it’s best to get out of the courthouse.