Unconstitutional to summon Selebi witness

"Section 27(1) of the Intelligence Services Act provides that, subject to Section 10(3)(a), a former member may not disclose in any form or any manner any information or material to any other person, unless the director-general concerned has granted permission for the disclosure of such information or material," the document reads.

"The essence of the objection is that Mr [Barry] Gilder is not a compellable witness in terms of section 202 of the CPA [Criminal Procedure Act] and cannot testify on classified matters in the circumstances of this case unless the authorisation of the director-general is obtained as contemplated in section 27(1) of the IS [Intelligence Services] Act."

By subpoenaing Gilder, the NPA infringed provisions of Section 41 of the Constitution, it said.

The state wants Gilder to testify about a 2005 draft intelligence report which contains a single paragraph about allegedly untoward payments the former national police commissioner was receiving from slain mining magnate Brett Kebble.

Gilder was the co-ordinator for intelligence and chairperson of the National Intelligence Co-ordinating Committee at the time.

In papers filed on Tuesday, the ministry said the paragraph referred to by the state was inadmissible as it was included in the draft report and not the final report on which the Selebi case was based.

"That specific paragraph never found its way into the final report. This is important as the charge against Mr Selebi in this regard refers to a final report," the document reads.

Tuesday's petitions to the Constitutional Court follow failed attempts in the High Court in Johannesburg and in the Supreme Court of Appeal to prevent Gilder from testifying.

The High Court ruled Gilder should testify in camera, but the ministry took the matter to the Supreme Court instead, which upheld the high court ruling.

In Tuesday's petitions, the ministry also reiterated its argument that Gilder's testimony could reveal sensitive information which poses a risk to state security.

"The evidence to be elicited from Mr Gilder relates strictly to the draft NIE [National Intelligence Estimate]. It is common cause that the draft NIE is a classified document. It is classified secret. There has been no challenge to the classification. To this extent, arguments relating to whether or not the ipse dixit [he himself said it] of the director-general and the minister as to the classification should be accepted, are irrelevant.

"The only issue is whether there is any risk to state security if Mr Gilder is compelled or permitted to testify. The applicants submit that this is indeed the case," it said.

The state was expected to file papers in response to this petition on Friday.

Prosecutor Gerrie Nel has argued in court that the testimony wanted from Gilder posed no risk as it would cover information already in the public domain, as several witnesses had already mentioned it in their testimony.

Selebi is facing a count of corruption and another of defeating the ends of justice in connection with about R1.2 million he allegedly received from Kebble, convicted drug trafficker Glenn Agliotti and ex-Hyundai boss Billy Rautenbach in return for favours.

He has pleaded not guilty to all charges.

His case is expected to resume on March 1.