Affidavit Luberti revised in English

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No:   4731/2010

In the matter between:

VITO ROBERTO PALAZZOLO Applicant

and

THE MINISTER OF JUSTICE

AND CONSTITUTIONAL DEVELOPMENT First Respondent

THE FORMER MINISTER OF JUSTICE

AND CONSTITUTIONAL DEVELOPMENT Second Respondent

THE DIRECTOR-GENERAL:

JUSTICE AND CONSTITUTIONAL DEVELOPMENT Third Respondent

THE NATIONAL DIRECTOR OF

PUBLIC PROSECUTIONS Fourth Respondent

CONFIRMATORY AFFIDAVIT

I, the undersigned,

FRANCO LUBERTI,

do hereby make oath and state as follows:

  1. I am a senior counsel and have been admitted to appear before the Italian Supreme Court of Appeal and other Higher Courts.  I am an expert in Italian criminal and procedural law.
  1. The contents of this affidavit are true.  Unless I indicate otherwise, or the contrary appears from the context, such contents are within my personal knowledge and belief.
  1. I was elected as a Member of Parliament to the Chamber of Deputies in the Vth Legislature in 1968 and Senator to the VIIth Legislature.
  1. At a joint sitting of the Italian Parliament in 1971, I was elected as a member of the body responsible for insuring the independence of the judiciary, the “Consiglio Superiore della Magistratura”.
  1. I have authored various legal and other publications and have participated in criminal proceedings of national relevance.  Thus I represented the plaintiff against those involved in the “Circeo Massacre” and was counsel for the defence representing the Italian partisans in the matter involving an act of war in Via Rasella against Nazi troops.
  1. I am one of the legal representatives of the Applicant, Mr Vito Roberto Palazzolo, in Italy and I am familiar with the nature and contents of the legal proceedings in which he has been involved and is currently involved.
  1. During August 2003 I was advised that my colleague Viola had been informed by way of a note from the Italian Ambassador in South Africa of a request for a meeting in Italy between certain South African officials, i.e. Adv V P Pikoli, then the Director-General of the Department of Justice, Mr E Daniels, the Chief State Law Adviser, and Mr N J Makhubele, the Director of International Affairs of the Department of Justice, with the three members of the Court in Palermo under the presidency of Dr Donatello Puleo who were, at the time, presiding in criminal proceedings involving a charge under Article 416bis of the Italian Criminal Code against the Applicant in this matter.  When the meeting took place, Mr F Fortune of the South African Embassy in Rome also attended.  The members of the Court were the President, Dr Puleo, and two other members, Drs Victorio Alcamo and Lorenzo Chiaramonte.
  1. The nature and object of this meeting was not at all clear and precise, but seemingly concerned the Italian Court’s request for evidence to be taken on commission in South Africa.  In this regard the prosecution as well as the defence prepared lists of witnesses as well as questions which they wished to be put to those witnesses.
  1. On my advice, my colleague Viola made an application to the Court requesting its permission for ourselves to be present at the Court’s meeting with the South African delegation in the interests of our client.
  1. Mr Palazzolo’s South African legal representative, Adv J C Heunis SC, travelled to Palermo to attend this meeting and an application was also made to the Court to allow him to attend the meeting.  He represented Mr Palazzolo at the proceedings in South Africa when evidence was finally taken down on commission.
  1. In the event, the Court issued an order in terms of which it granted permission for the members of Mr Palazzolo’s Italian defence team, together with an interpreter, to be present at the meeting, but declined the request for Adv Heunis to be present.
  1. At the commencement of the meeting on 15 October 2003, we again made application for Adv Heunis to be allowed to attend the meeting.
  1. On this occasion we presented a fresh motivation with reference to a written document in respect of the application for Adv Heunis to be present.
  1. The South African delegation was vehemently opposed against this, a fact which strengthened our suspicion about the real reason for this extraordinary meeting which was entirely inconsistent with the appropriate procedure and a complete anomaly in terms of Italian law.
  1. In the event the further attempt to secure the presence of Adv Heunis was unsuccessful.
  1. As it turned out, it became clear that the South African delegation’s purpose with the meeting was to influence the rogatory proceedings by requesting the exclusion from the lists of witnesses put up by the prosecuting and defence teams of Mr B Ngcuka, the National Director of Public Prosecutions at the time, Adv B G Morrison SC, who conducted the unsuccessful prosecution of Mr Palazzolo in the Cape Town Regional Court, and Mr D J M Bruce, the Head of Interpol in Pretoria.  I reiterate that the meeting with the Court and the request made by the South Africans were totally unusual and irregular.
  1. It goes without saying that in Italy the prosecution is able to conduct investigations and, in the process, consult with any person(s), but the Court that was trying Mr Palazzolo could not, and should not, have had contact with anyone.  It was completely irregular for a delegation of a foreign country comprising members of the executive authority and not the judicial authority, to meet with an Italian judicial structure which, in this specific instance, was responsible for hearing a criminal case involving Mr Palazzolo.
  1. At the outset I clashed with the President regarding the presence of our South African colleague because she prevented me from presenting the new application based on new motivation, causing me to protest the injustice of this decision.
  1. I protested vigorously while my South African colleague left the meeting.
  1. Following this and to our utter astonishment, Adv Pikoli, the leader of the South African delegation, strenuously objected to the presence of the members of Mr Palazzolo’s Italian defence team at the meeting.  He claimed that their mission in Italy involved the relationship between two governments and that, therefore, Mr Palazzolo’s defence team should not be allowed to participate in the meeting.  The South African delegation alleged that they needed to speak confidentially with the members of the Court.
  1. I replied that the nature of the meeting could not be described          as being inter-governmental, but the Prosecutor, Dr Gozzo, enthusiastically supported the South African request.
  1. Contrary to the appropriate legal principles, we were not allowed to speak in support of our resistance to the South African request and, in the event, the President agreed to a preliminary meeting with the South Africans alone to be followed by one with the members of the prosecuting and defence teams present.
  1. Having left the meeting and while waiting to be summoned back in, we decided that we should abandon any form of cooperation and, to this end, submit a motivated note of protest.
  1. After a while the clearly embarrassed President of the Court approached us and told us, profusely apologising as she did so, that our presence was no longer necessary and that the preliminary meeting had become a definitive meeting at which it had been decided to remove the names of Advv Ngcuka and Morrison and Mr Bruce from the respective lists of witnesses.
  1. She also mentioned that when the South African delegation surreptitiously attempted to introduce the matter of Mr Palazzolo’s extradition, and use this as a bargaining chip, she prevented them from doing so.
  1. Next I respectfully share with the Honourable Court Mr Palazzolo’s legal team’s assessment of the secret meeting between the South African officials and the members of the Court.
  1. We considered that the South African judicial authorities had to be informed, in a precise and detailed fashion, of the –

27.1        shocking irregularity of the fact of the confidential meeting between representatives of the South African government and the Italian judicial authority that was trying Mr Palazzolo;

27.2        unjust exclusion of all defence counsel from that meeting;

27.3        irregularity of the request made by the South African representatives that the names of certain people who were identified as witnesses by the prosecution and defence be removed from the respective witness lists;

27.4        fact that the demands made by the South African delegation were, objectively viewed, tantamount to inappropriate pressure on the Italian judges to which they clearly succumbed.

_____________________________

FRANCO LUBERTI

I certify that:

1.         The deponent acknowledged to me that:

1.  1     he knows and understands the contents of this declaration;

1.  2     has no objection to taking the prescribed oath;

1.  3     he considers the prescribed oath to be binding on his    conscience.

2.         The deponent thereafter uttered the words, “I swear that the contents of this declaration are true, so help me God“.

3.         The deponent signed this declaration in my presence at the address    set out hereunder on this the ____ day of _________________ 2010.

________________________

COMMISSIONER OF OATHS

Address: