Gilder to testify

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The state security ministry has lost its Constitutional Court application to appeal a decision compelling a former national intelligence coordinator to testify in the corruption trial of ex-police commissioner Jackie Selebi.

The court dismissed the application for leave to appeal the high court ruling by the ministry this morning, saying it has no “prospects for success”. Barry Gilder (pictured) is now expected to testify in camera, as ruled by South Gauteng High Court Judge Meyer Joffe last year.

NPA spokesman Mthunzi Mhaga says in a statement the agency welcomes the ruling. Selebi’s trial, which had been delayed due to the appeal, will resume March 1. Gilder was subpoenaed by the NPA to testify on a top-secret document, a national intelligence estimate compiled in 2005. The state’s main witness, convicted druglord Glenn Agliotti, testified that Selebi had shown him a draft of the document, the Times newspaper reports.

It is alleged that the draft contained claims made by businessman Jurgen Kogl that Selebi received money from slain mining magnate Brett Kebble. The paragraph was apparently deleted from the final document.

The South African Press Association says state security minister contended it was unconstitutional for the NPA to summons Gilder without the permission of the state security director general. The ministry argued that forcing Gilder to testify could set a precedent – with serious constitutional ramifications – where intelligence information could be compromised.

Prosecutor Gerrie Nel has previously argued in court that the testimony wanted from Gilder is already in the public domain and has been mentioned by several witnesses in their testimony.

Business Day this morning reported that the NPA argued in reply that a “bare assertion” that it would prejudice state security to call Gilder as a witness was not sufficient to set aside his subpoena under Section 205 of the Criminal Procedure Act of 1977.

NPA advocate Andrea Johnson said the apparent stance of State Security Minister Siyabonga Cwele and director-general Mzuvukile Maqetuka was that it was “enough for them to simply say that, in their view, national security would be compromised”.

But this was reminiscent of the apartheid Internal Security Act — which shielded a person from testifying if the relevant minister said it was in the national interest, Johnson said. That act had been repealed and there was no equivalent in force today, she said. Johnson said the appeal had no prospect of success and if the Constitutional Court granted leave it would only further delay Selebi’s trial, the paper added.

Selebi’s trial has been on hold since November 23 last year — the day Gilder was supposed to testify. Leave to appeal was refused by the Supreme Court of Appeal last month. In his application for leave to appeal, Maqetuka said that in cross-examination Gilder might be led to disclose intelligence gathering methods, sources and operatives’ identities. But Johnson denied this. She said Gilder’s evidence was required for a very narrow purpose. The hearing had been ordered to be in camera and anyone could object if the questioning veered towards classified areas .

She also rejected Maqetuka’s assertion that the case was about balancing the interests of state security with the requirements of open justice. Section 202 of the Criminal Procedure Act made Gilder a compellable witness and there was no requirement that the NPA seek permission, she said.