Former top cop and corruption accused Jackie Selebi gave the strongest indication yet on Thursday that he was paving the way for a mistrial application — during or after his criminal trial.
Selebi’s affidavit in support of his application for the recusal of Judge Meyer Joffe aims to paint a picture of a massive conspiracy against him, driven by chief prosecutor Gerrie Nel and the Scorpions, and supported by the media. According to him, Joffe fell for this.
According to Selebi, he was convinced by his legal team not to bring an application for a mistrial before the start of his criminal trial.
“Since the first allegations in the press against me during early 2006 there had been an unprecedented smear campaign in the media against me, to the extent that I had serious doubts if it would be possible for me to have a fair trial.
‘I was always worried whether any court, after having read the allegations against me in the press, would have the ability to completely separate the true facts from the false allegations in the smear campaign. That of course would have a serious bearing on evaluation of evidence and the credibility of witnesses,” Selebi states.
His legal team, led by senior counsel Jaap Cilliers, ‘persuaded” him not to raise these issues as it would delay the start of the trial ‘and it was my clear instructions that they should insist in finalising the trial as soon as possible”.
But Selebi’s application to have Joffe removed indicates a change of tack. Even though the trial has run for only 11 days, he already believes Joffe is biased towards the state and that he would not receive a fair trial.
Selebi’s belief that he is the victim of a publicity-driven conspiracy raises the question: which judge, if any, would be acceptable to the accused and his legal team? If the answer is no judge, then the logical step would be for Cilliers to bring an application for a permanent stay of prosecution.
This approach echoes President Jacob Zuma’s ‘Stalingrad” legal strategy during his battles with the Scorpions. Although it took him years to have the charges against him withdrawn, Selebi might argue that the Zuma option is a less risky approach than proceeding with a trial that has already damaged his image.
Cilliers had a torrid time convincing Joffe on Thursday morning that Selebi believed he was biased and should recuse himself from the trial. Numerous heated exchanges between the two ended with Joffe banging his hands on
his wooden bench and telling Cilliers to ‘please move on”.
In response to Cilliers Nel said the application for Joffe’s recusal was ‘weak” and without merit.
‘If there is no basis for this application, then why [is it brought]? Then I ask why do we want to get out of this trial? Why do we say anybody but you, M’Lord?”
Nel also quoted controversial American jurist Alan Dershowitz, who said ‘the best defence is a good offence”, suggesting that this is also Selebi’s
strategy for the trial.