New bid to stop Gilder testifying

The department of state security has told the highest court in South Africa that it was unconstitutional for a former intelligence official to be asked to testify in Jackie Selebi's corruption trial without the minister being informed.

The department filed its appeal with the Constitutional Court yesterday after a petition to stop former intelligence co-ordinator Barry Gilder from testifying in Selebi's graft trial was dismissed by the Supreme Court of Appeal in January.

The department claims that the National Prosecuting Authority encroached on its constitutional right to operate as one of the government's departments by serving a subpoena on Gilder.

The papers before the court say: "The National Prosecuting Authority also resorted to a subpoena ... where it should have first sought to co-operate with the [department] as required by section 41 of the Constitution."

That section of the Constitution specifies that all spheres of government, and state organs, should "exercise their powers and perform their functions in a manner that does not encroach on the ... integrity of government in another sphere".

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 intelligence estimate. It is alleged that the draft contained claims made by businessman Jurgen Kogl that Selebi received money from slain mining magnate Brett Kebble.

State Security Minister Siyabonga Cwele and his department's director-general, Jeff Maqetuka, also filed affidavits in the Constitutional Court in which they said that Gilder was "not a compellable witness" and "cannot testify on classified matters" without authorisation.

Cwele's affidavit states: "I have personally considered the matter and, in my opinion, it affects the security of the state and that disclosures of the draft national intelligence estimate will prejudicially affect the security of the state."

The department also claims that the "interpretation and application of section 202 of the Criminal Procedures Act is a constitutional issue" because it deals with the disclosure of information that affects the South African public.