S v Selebi (25/09) [2010] ZAGPJHC 53 (5 July 2010)

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[2010] ZAGPJHC 53
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S v Selebi (25/09) [2010] ZAGPJHC 53 (5 July 2010)

IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO: 25/09
DATE:5/07/2010
In
the matter between:
THE
STATE
and
JACOB
SELLO SELEBI
JUDGMENT
JOFFE
J
:
1.
The
accused was the former National Commissioner of the South African
Police Services ("SAPS"). At all relevant times
in this
judgment he acted in that capacity.
2.
The
accused is charged with two main counts. He is also charged in the
alternative to the first count (as separate counts) with
two sub
counts. The reference to the counts that follows is as set out in the
indictment as originally formulated by the state.
3.
The
first count is that the accused is guilty of the crime of corruption
in contravention of s 4 (1) (a) of the Prevention and Combating
of
Corrupt Activities Act, No 12 of 2004
("PCCA").
The first alternative count is that the accused is guilty of the
crime of corruption in contravention of s 1
(1) (b) read with s 3 of
the Corruption Act, No 94 of 1992 ("CA"). This count is in
respect of the period 1 January 2000
to 26 April 2004. The second
alternative count is that the accused is guilty of the crime of
corruption in terms of s 3 (a) and
or 4 (1) (a) of the PCCA. This
count is in respect of the period 27 April 2004 to 16 November
2005.The reason for the two alternative
counts is to be found in the
repeal of the CA by the PCCA, The PCCA came into effect on 27 April
2004.
4.
The
second count is that the accused is guilty of the crime of defeating
or obstructing the administration of justice.
5.
The
factual basis as set out in the indictment for all the counts can be
summarised in broad outline as follows: The accused is
a public
officer in terms of the PCCA. A relationship developed between a Mr
Glen Norbert Agliotti ("Agliotti") and the
accused. This
relationship became a generally corrupt relationship. The accused
received sums of money and clothing for himself
and on one occasion
for the accused's sons from Agliotti. The accused received the
aforementioned gratification in order to act
in a manner proscribed
in s 4 (1) (a) (i) to (iv) of the PCCA and the accused did so act.
The accused so acted by sharing with
Agliotti secret information
about an investigation against Agliotti conducted by United Kingdom
law enforcement authorities; protecting
Agliotti from criminal
investigation; sharing with Agliotti information about SAPS
investigations; sharing secret and or confidential
information with
Agliotti; agreeing to and or attempting to influence the
investigative and or prosecutorial process against one
Rautenbach;
sharing with one Sanders and or one Nassif and others tender
information relating to impending contractual work to
be performed in
Sudan; assisting Agliotti and or Agliotti's associates to receive
preferential or special SAPS services.
6.
The accused pleaded not guilty to all the charges. He furnished a
plea explanation in terms of section 115 of the Criminal Procedure

Act, No 51 of 1977 ("CPA"). In essence the accused denied
all the allegations made against him. In addition, the accused

contended that this prosecution is not bona fide and was instituted
with an ulterior motive in an attempt to discredit him and
to ensure
the continued existence of the Directorate Special Operations
("DSO"). In order to place the plea explanation
in its
proper perspective it should be noted that the DSO (commonly referred
to as the Scorpions), was a unit within the National
Prosecuting
Authority ("NPA"). The National Director of
Public Prosecutions is the head of the NPA. As far
as is relevant to
the plea explanation, Mr Bulelani Ngcuka ("Ngcuka") and Mr
Busumzi Patrick Pikoli ("Pikoli")
were the Directors of
Public Prosecutions. Pikoli succeeded Ngcuka in that position on 1
February 2005. Reverting to the plea
explanation it is stated therein
that:
6.1
The relationship between the accused, as the National Commissioner of
SAPS, and the DSO deteriorated substantially in the years
preceding
2005 because the accused supported the view that the DSO acted beyond
their mandate by involving themselves in local
and foreign
intelligence matters not relating to the investigation of
criminal matters in the Republic of South Africa
and that the DSO
should be dissolved and incorporated into the SAPS;
6.2
Details are then given of information obtained by the accused during
the latter half of 2005 in regard to Ngcuka during his
term as
National Director of Public Prosecutions and also as head of the DSO
and Pikoli during his term as National Director of
Public
Prosecutions.
6.3
In regard to Ngcuka the information was that whilst National Director
of Public Prosecutions and head of the DSO, he approached
a Mr Ramsay
("Ramsay"), an attorney, who represented a Mr
Muller Conrad
Rautenbach
and who is referred to in the evidence as Billy Rautenbach
("Rautenbach") suggesting a solution to a pending
criminal
case against Rautenbach, which had been investigated by the DSO, if
Rautenbach co-operated with Ngcuka. Ngcuka had attempted
to extort a
bribe from Ramsay and that Ngcuka was more interested in information
regarding mining rights in the Democratic Republic
of the Congo
("DRC") and Zimbabwe than in the offences that Rautenbach
allegedly committed. The information further showed
that Ngcuka and
the DSO were involved in the illegal gathering of intelligence and
that they had involved themselves
with foreign
intelligence agencies in the Rautenbach investigation without any
authorisation. In regard to Pikoli the information
was that he
obtained in an improper manner, through his wife, material
gratification from a Mr Brett Kebble and or the JCI group
of
companies. The gratification consisted of shares in Simmer and Jack
Ltd and was acquired through Jaganda (Pty) Ltd and Vulisango
(Pty)
Ltd.
6.4
Toward the end of 2005 the accused summoned Pikoli to his office to
discuss the above issues. At that time Pikoli was the National

Director of Public Prosecutions.
6.5
At that meeting Pikoli claimed that he had no knowledge of the
negotiations relating to the Rautenbach and Ramsay
"situation".
According
to the accused's plea explanation Pikoli's response was
"Oh
it is a murky world'.
The
accused warned Pikoli that
"they"
should
not deal with fugitives with the assistance of foreign intelligence
agencies. With regard to the gratification which Pikoli
received
through his wife, Pikoli became very emotional and stated that his
wife is his
"Achilles
heel”.
6.6
The
accused subsequently instructed the Directorate Crime Intelligence to
proceed with their investigation in regard to Ngcuka and
Pikoli.
6.7
The accused's above conduct caused a further deterioration
in his relationship with the NPA and the DSO. The accused
then points
out that it must be borne in mind that the National Director of
Public Prosecutions is the person ultimately responsible
and in
control of the DSO. The accused adds that it must also be remembered
that the question of the further existence of the DSO
was reaching a
climax at that stage.
6.8
Shortly after what the accused refers to as
"the
above confrontation with Pikolf
the
DSO commenced their investigation against the accused.
6.9
The accused points out that it should be noted that whilst Ngcuka was
at this stage no longer the Director of Public Prosecutions
he
exerted huge pressure on one McCarthy, the then head of the DSO, to
proceed with the campaign against the accused.
6.10
Shortly
after the investigation started the NPA and the DSO leaked
information to the press in an attempt to destroy the accused's

credibility. This was done deliberately in accordance with a specific
strategy agreed upon at a meeting including the senior management
of
the DSO. False, misleading and or untested information was given to
the Cabinet and or the President to have the accused's employment
as
National Commissioner of the SAPS terminated and or suspended. In
addition the NPA and DSO provided false and misleading evidence
to
this court to ensure the continuation of the campaign against the
accused.
6.11
it
is stated that the NPA and the DSO approached a number of people with
a history of criminal activities, and offered them indemnities

against prosecution on serious crimes ranging from murder, attempted
murder, drug trafficking, money laundering, fraud, theft,

intimidation, defeating the ends of justice and other crimes in
exchange for false statements implicating the accused.
7.
The accused concluded his plea explanation by stating that the case
against him
"was
manipulated with male fide intentions in an attempt to discredit him
for the reasons set
out
above and to ensure the continued existence of the DSO".
8.
It should perhaps just be mentioned at this stage that Pikoli did not
directly succeed Ngcuka. Dr Ramaite ("Ramaite")
appears to
have been the acting head of the NPA prior to the appointment of
Pikoli.
9.
The trial commenced on 5 October 2009. On that day the charges were
put to the accused. The accused pleaded and tendered the
plea
explanation already referred to.
10.
The state called its first witness, Agliotti, on 5 October 2009.
11.
Whilst Agliotti was testifying in chief, the accused's counsel
objected to the leading of certain evidence on the grounds that
the
evidence fell out of the time frame provided for in the charge sheet.
The accused's counsel pointed out that the state was
seeking to
elicit evidence of the disclosure of certain documents by the accused
to Agliotti. The one document was referred to
during the trial as the
UK report and the other document as an e-mail. In regard to the
former document Agliotti was about to testify
that the UK report was
handed to him during July or August 2006. In regard to the latter
document Agliotti was in the process of
testifying that it had been
handed to him by the accused in 2006.
12.
In
answering the objection the state's counsel sought an amendment to
the charge sheet in terms of s 86 of the CPA. The amendment
was
granted. It was indicated that reasons for the granting of the
amendment would be given at the conclusion of the trial. The

historical account of the trial will now be interrupted and the
reasons for the granting of the amendment will be given.
13.
It
was pointed out by the state's counsel that the charge sheet was
intended to include events that occurred in 2006 up to the arrest
of
Agliotti. Agliotti was arrested on 16 November 2006.
14.
In
developing their argument the state's counsel referred to the further
particulars that the state furnished to the accused at
his instance.
In paragraph 30.1 of the request the accused asked
"when
exactly did the accused allegedly share secret information with
Agliotti".
The
secret information referred to need at this stage only be identified
as the e-mail, the UK Report and the NIE report. In response
to the
request the state stated that the exact date
is
unknown to the state. As to the e-mail the state stated in the
further particulars that it
"was
shared with Agliotti on a Saturday after the 20
th
April 2006".
In
response to a request where exactly the accused shared the secret
information with Agliotti, the state responded by stating that
the UK
report and the NiE report were shown to Agliotti at Maverick
Masupatsela. Counsel for the state pointed out that whilst
these
particulars did not put a date to the sharing of the UK report it
linked it to an incident. It was further pointed out by
the state's
counsel that the e-mail and the UK report had been made available by
the state to the accused and that the evidence
which the state seeks
to lead in this respect is in conformity with the content of
affidavits that the state had made available
to the accused's legal
team. This was not contested by the accused's counsel.
15.
In the alternative to count 2 it is alleged that
"during
the period 27 April 2004 to 16 November 2006'
the
accused accepted gratification
"in
respect of his doing and or omitting to do any act in relation to the
exercise, carrying out or performance of his powers,
duties or
functions within the scope of his employment relationship, more
particularly as described in the preamble"
to
the charge sheet. It should be emphasised that the charge sheet
referred to 16
November
2006 prior to amendment. The accused sought particulars in regard
thereto and was given the same replies as are set out
above.
16.
S
86(1) of the CPA empowers a court to amend a charge sheet at any time
before judgment if it considers that the amendment will
not prejudice
the accused in his defence. Regard being had to that set out above it
could not be found that the accused would suffer
any prejudice if the
amendment was granted. His counsel did not point to any prejudice.
17.
Accordingly
the following order was made:
"On
the
application of the state, the indictment is amended in the following
respects:
1.
P
2 thereof the year 2005 appearing twice on that p is amended to read
2006.
2.
P
13
thereof the year 2005 appearing in the third line of paragraph 1
thereof is amended to read 2006.
3.
P
18 thereof the date 31 December 2005 in the first line of the second
paragraph is amended to read 31 December 2006 and the date
17
November 2005 in the second line of the second paragraph is amended
to read 16 November 2006.
4.
In
p 21 thereof the year 2005 in the first paragraph is amended to read
2006 and the date 17 November 2005 in the second paragraph
is amended
to read 16 November 2006.
5.
In
p 24 thereof the date 31 December 2005 in the paragraph preceding
paragraph 15 is amended to read 31 December 2006."
18.
After the amendment was granted the state continued leading
Agloitti's evidence. On the completion thereof Agliotti was cross

examined for a period of 9 days.
19.
In the course of Agloitti's cross examination counsel for the accused
sought to play to the court and to put to Agliotti the
content of an
audio visual DVD recording of a meeting which took place on 7 January
2008 between Agliotti and Commissioner Mphego
of the SAPS. The state
contended that the recording was inadmissible as evidence. This was
disputed by the accused's counsel. After
hearing argument it was
ruled that the DVD recording of the interview which took place on 7
January 2008 would be provisionally
allowed. During argument at the
conclusion of the trial, the state did not persist in its contention
that the recording be ruled
to be inadmissible. Once again the
historical account
of
the judgment will be interrupted and the reasons for the ruling will
be furnished.
20.
Counsel
for the state did not dispute the authenticity of the DVD recording.
They objected to its admissibility.
21.
This
objection was based on the fact that Agliotti had made it clear to
Mphego that the interview which was recorded was to be off
the record
as he had not spoken to his legal team which he still wished to do.
He added that the DVD
"was
not to be used and was totally off the record'.
According
to Agliotti, Mphego was in agreement with what he had stated and that
"it
was just for gathering intelligence purposes and that he (Mphego)
respected my (Agloitti's) wishes as to consult with my
legal team".
22.
Accordingly
it was argued by counsel for the state that, once Agliotti had
indicated that he wished to consult with his legal advisers,
Mphego
should have stopped the interview and that the continuation thereof
was illegal.
23.
In
this matter it is not contended that the DVD constitutes evidence
that was unconstitutionally obtained. What is contended is
that the
admission thereof into evidence breaches the undertaking given by
Mphego and would be
in
conflict with public policy in that public policy demands that
undertakings be fulfilled and that it would furthermore constitute
a
deliberate and conscious violation of Mphego's undertaking.
24.
It was submitted, with reference to S v Nombewu
1996 (2) SACR 396
(E)
at 417 a to c, that the concept of a fair trial includes fairness to
the state and that such fairness demands the ruling sought
by the
state. As to what fairness requires it was held in Key v
Attorney-Genera!, Cape Provincial Division, and Another
[1996] ZACC 25
;
1996 (2) SACR
113
CC at 121 a
"What
the Constitution demands is that the accused be given
a
fair
trial. Ultimately... fairness is an issue which has to be decided
upon the facts of each case, and the trial judge is the person
best
placed to take that decision. At times fairness might require that
evidence unconstitutionally obtained be excluded. But there
will also
be times when fairness will require that evidence, albeit obtained
unconstitutionally, nevertheless be admitted."
There
can be little doubt the concept of a fair trial must include fairness
to the state and that accordingly evidence unconstitutionally

obtained may be excluded from the trial at the instance of the state.
See also
SvM
2002 SACR 411
(SCA) on 431 f to j. It is not only evidence that is
unconstitutionally obtained that may be excluded. Evidence
that
is improperly obtained may be excluded as well. In S v Hammer and
Others
1994 (2) SACR 496
(C) on 498 I the court referred with
approval to the following conclusion by Professor Skeen in an
article The Admissibility of
improperly Obtained Evidence in Criminal
Trials"
(1998) 3 SAC J 389:
"Despite
its subjectivity it is submitted that the intermediate approach
affords the best solution to the vexed problem of
improperly obtained
evidence. It is suggested that the courts in South Africa should
feel themselves free to develop a general
discretion to exclude
improperly obtained evidence on the grounds of unfairness and public
policy. The following factors may be
useful in deciding whether to
exercise the discretion: (a) society's right to insist that those who
enforce the law themselves
respect it, so that a citizen's precious
right to immunity from arbitrary and unlawful intrusion into the
daily affairs of private
life may remain unimpaired; (b) whether the
unlawful act was a mistaken act and whether in the case of mistake,
the cogency of
evidence is affected; (c) the ease with which the law
might have been complied with in procuring the evidence in question
(a deliberate
"cutting of corners" would tend towards the
inadmissibility of the evidence illegally obtained); (d) the nature
of
the offence charged and the policy decision behind the enactment
of the offence are also considerations; (e) unfairness to the
accused
should not be the only basis for the exercise of the discretion; (f)
whether the administration of justice would be brought
into disrepute
if the evidence was admitted; (g) there should be no presumption in
favour of or against the reception of the evidence,
the question of
an onus should not be introduced; (h) it should not be a direct
intention to discipline the law enforcement officials;
(i) an
untrammelled search for the truth should be balanced by discretionary
measures, for in the words of Knight Bruce VC, "Truth,
like
other good things, may be loved unwisely -it may be pursued too
keenly - may cost too much"."
25.
As far as the requirement of a fair trial is concerned counsel for
the accused relied on S v Kidson
1999 (1) SACR 338
WLD on 345 where
Cameron J (as he then was ) referred with approval to the following
passage in the work of Hogg The Constitutional
Law of Canada vol 2 at
45-12 to 45-13 :
"In
any conversation, no matter how confidential its subject matter, each
participant runs the risk that his interlocutor will
betray the
confidence by repeating the conversation to someone else. If a
participant is charged with a crime and the conversation
is relevant
to the charge, then his interlocutor is free to talk to the police
and to testify in court about the conversation.
Indeed, the
interlocutor can be compelled to testify about the
conversation
in court. Since the disclosure of a private conversation is
admissible in
a
court
of law, then surely the recording of a conversation by a participant
ought to be admissible too. The recording simply improves
the
participant's power of recollection making the evidence more
reliable. For this reason, the Supreme Court of the United States
of
America has held that participant surveillance is not a search and
seizure within the Fourth Amendment. When the accused discloses
the
confidence to someone else, he assumes the risk that his interlocutor
will reveal the confidence to the police and therefore
there is no
breach of a reasonable expectation of privacy when the interlocutor
does reveal that confidence to the police, even
when electronic aid
is employed. By rejecting this distinction, the Supreme Court of
Canada has produced an ironic result. The
police informers in Duarte
and Wiggins are free to testify in Court about their conversations
with the accuseds (sic}, where their
memory and credibility will no
doubt be challenged by the accused; but the electronic records of the
conversations, which would
set all doubts at rest, are inadmissible!"
26.
Counsel for the accused pointed out that they had received the DVD
from the state as part of the docket. The effect of this
submission
is that the accused was not a party to the
breach
of the undertaking made by Mphego. Indeed counsel for the accused
submitted that in determining the application it should
be kept in
mind that the accused obtained the DVD in an absolutely proper way.
This submission, and the role played by Mphego in
the making of the
DVD and his role in an interview with Agliotti on 28 August 2003 will
receive consideration later in this judgment.
At the time the ruling
as to the admissibility of the DVD was made the submission that the
accused obtained the DVD in an absolutely
proper way was accepted by
the court.
27.
Regard
being had to all the aforegoing it is clear that the court, in
determining the admissibility of the DVD, must balance the
competing
interests of the state and the accused. In most cases, indeed all the
reported cases which were referred to by counsel,
it would be the
accused seeking to exclude evidence which the accused considered was
obtained unconstitutionally or illegally.
In the present case it is
the state that seeks to do so.
28.
It
is contended on behalf of the accused that the DVD goes far in
establishing the innocence of the accused and that the accused
was
not involved in any way in its procurement.
29.
As
far as the undertaking is concerned, the high office that Mphego held
in the SAPS must be emphasised. By admitting the evidence
the court
wouid be condoning the breach of an undertaking by a senior poiiceman
which, no doubt, would be construed as reducing
the standing of the
SAPS in the eyes of the general public. Its admission could also
reduce the esteem of the courts in the eyes
of the general public.
30.
When
balancing the competing interests of the state and the accused the
scale must favour the accused. If the DVD goes a long way
in
establishing his innocence, as was submitted by his counsel, it would
be unfair to him to exclude it from evidence. Accordingly
it was
ruled that the video evidence of the interview which took place on 7
January 2008 would be admissible. It was added that
the ruling as to
admissibility was provisional.
31.
At
the conclusion of the trial counsel for the state did not repeat
their objection to the admissibility of the DVD. No additional

arguments were advanced against its admissibility. For the reasons
already furnished the video evidence of the interview which
took
place on 7 January 2008 is ruled to be admissible.
32.
The
DVD recording is exhibit 1(a) and the agreed typed transcript of its
verbal content is exhibit 1(b).
33.
Finally,
in regard to the history of the trial, it should be noted that
Advocate L Hodes SC, who at times during the cross examination
of
Agliotti advised Agliotti of his rights, was invited to make
submissions in regard to the admissibility of the DVD. This was
done
in view of Agiiotti's contention that the content of the DVD was to
be off the record. Mr Hodes' submissions are on record
and did not
play a role in the conclusion arrived at. Furthermore, in so far as
Mr Hodes' submissions purported to place facts
before the court, they
were ignored and played no role in the determination of either the
application or the trial.
34.
After
the aforesaid ruling was made the cross examination of Agliotti
continued. During Agiiotti's further cross examination an
application
was brought by the accused for my recusal. The accused and the state
were placed on terms for the filing of affidavits.
The application
was heard and dismissed on 30 October 2009. The judgment forms part
of this record. It need not be referred to
any further herein.
35.
After the refusal of the recusal application the cross examination of
Agliotti continued. Prior to the completion of the cross
examination
of Agliotti, the defence handed up an application for a special entry
in terms of s 317 of the CPA. The application
stood down to furnish
the state an opportunity of dealing with it. Later it was ruled that
it would be dealt with at the conclusion
of the trial. During
argument at the conclusion of the trial the accused's counsel
indicated that they were not pursuing the application
for a special
entry at this stage but reserved the accused's right to do so in the
event of the accused being convicted.
36.
On the conclusion of Agliotti's evidence the state advanced the
evidence of 17 witnesses. They will be identified later. The
second
last witness called by the state was Mr B Gilder. He was called on 23
November 2009. When he was called to give evidence,
counsel
representing the Minister of State Security, the Director-Genera! of
the State Security Agency and Mr Gilder himself appeared
in court.
Counsel, Adv. Moerane SC, sought an order that Gilder should not be
required to testify. The application was dismissed
as was an
application for leave to appeal against the order. The trial was
however postponed to enable those for whom Adv. Moerane
SC appeared
to petition the Supreme Court of Appeal. The petition failed. The
trial however had to be
postponed
further to enable the same parties to petition the Constitutional
Court. That application was dismissed on 15 February
2010. Gilder
testified on 1 March 2010, thereafter the state called another
witness and after certain admissions were made by the
accused the
state closed its case on 2 March 2010.
37.Thereafter
the accused launched an application for his discharge in terms of s
174 of the CPA. The application was dismissed
on 12 April 2010. The
following order was made:
37.1
"The
application for the discharge of the accused in terms of s 174 of the
CPA is dismissed,
37.2
in
as much as the contention that the accused has not had a fair trial,
as is set out in the heads of argument filed on behalf of
the
accused, constitutes a separate application for the discharge of the
accused, it is ruled that such application should not
be determined
at this stage. Such application may be advanced and, if advanced,
will be determined at the conclusion of the trial.
38.
The accused requested a short postponement of the trial. The trial
recommenced on 14 April 2010 when the accused entered the
witness
box. On the conclusion of the
accused's
evidence the accused adduced the evidence of 6 witnesses. These
witnesses will be identified later. The accused then closed
his case.
39.
The following witnesses testified on behalf of the state in the
sequence that their names are set out hereunder.
39.1
Agliotti.
39.2
Ms
Diane Marie Muller ("Muller").
She
is the Chief Executive Officer of Maverick Experience Exhilarator
(Pty) Ltd, She was the former fiancee of Agliotti.
39.3
Mr
Martin Flint ("Flint").
He
is the Financial Director of Maverick Experience Exhilarator (Pty)
Ltd. He is the father of Muller.
39.4
Mr
Dean Friedman ("Friedman").
He
is a director and employee of KPMG Services (Pty) Ltd. He is employed
in its forensic business unit.
39.5
Mr
Stephen Colin Sanders ("Sanders").
He
was a policeman from December 1984 to March 1998 when he resigned. He
thereafter worked in the private security industry.
39.6
Ms
Paula Stephanie Roeiand ("Roeland").
She
is a Chief Forensic Examiner of the Special Investigation Unit. From
1984 to 2006 she was a member of SAPS. She was attached
to the
Serious and Violent Crime Unit.
39.7
Mr
Aubrey Morris Shlugman ("Shiugman").
He
is a police reservist in the SAPS with the rank of Superintendant. In
2005 he was the head reservist at the Sandton Police Station.
39.8
Mr
Mark Hankel ("Hanker").
He
is a Commissioner in the SAPS. In 1999 he was appointed Section Head
of Intelligence Centres. On 1 February 2008 his designation
changed
to Head of Operation Intelligence Analysis Coordination.
39.9
Mr
Wilhelm Johan Els ("Els").
He
is a Commissioner in the SAPS attached to Crime Intelligence.
39.10
Mr
Abraham Nelson ("Nelson").
He
is a Senior Superintendant in the SAPS attached to Crime
Intelligence.
38.11
Mr
Shaun Maharaj ("Maharaj").
He
is a bookkeeper and payroll administrator in the employ of Surtee
Esquire (Pty) Ltd.
39.12
Mr
Jurgen Kogl
("Kogl").
He
is director of African Renaissance Holdings Company. This company
owns a minority shareholding in Maverick Experience Exhitarator
(Pty)
Ltd.
39.13
Mr
Busumzi Patrick Pikoli ("Pikoli").
He
was the National Director of Public Prosecutions from 1 February 2005
until his suspension by the former President of South Africa,

President Mbeki, on 23 September 2007.
39.14
Mr
Muller Conrad Rautenbach ("Rautenbach").
He
lived in South Africa between 1990 and 1999. He was involved in
various business enterprises in South Africa. Fearing his arrest
he
left South Africa in late November 2009.
39.15
Mr
Hermanus Adriaan Jacobus Ne! ("Nel').
He
is a Superintendent in the employ of the SAPS. He is attached to
Crime Intelligence.
38.16
Mr
Aasif Surtee ("Surtee").
He
is employed by the Grays group where he runs the computer system and
the warehouse. The Grays Group is part of Surtee Esquire
(Pty) Ltd.
39.17
Mr
Andrew Gordon Leask ("Leask").
He
was a member of SAPS. In 2000 he was appointed in the Directorate of
Special Operations at the rank of Senior Special Investigator.
He was
appointed in 2001 to the rank of Chief Special Investigator and to
head the Special National Project in the Directorate
of Special
Operations' head office. He is the Chief Investigator in the matter
against the accused.
39.18
Mr
Barry Gilder ("Gilder").
During
the period March 2005 to October 2007 he occupied the post of
coordinator for intelligence which post was established by
the
National Strategic Intelligence Act.
39.19
Senior Superintendent Annette Lombard ("Lombard").
She
is a member of SAPS and is employed in the finance department at SAPS
head quarters.
40.
Before
the state closed its case the accused made certain admissions in
terms of s 220 of the CPA. These admissions are contained
in exhibit
XX11.
41.
Agliotti,
Muller, Flint and Sanders were all warned in terms of s 204 of the
CPA. in due course consideration will have to be given
to whether
they, or any one or more of them are entitled to be discharged from
prosecution in respect of the offences of which
they were warned.
During argument counsel were in agreement that this issue be
considered after this judgment has been delivered.
42.
The
accused then testified in his defence. He adduced the evidence of the
following witnesses whose names are set out hereunder
in the sequence
that they testified
42.1
Brigadier S de Beer.
From
2004 she was the spokesperson for the National Commissioner of SAPS.
42.2
Ms
Eunice Elizabeth Grove.
She
was an employee of SAPS and she was the accused's personal assistant.
42.3
Brigadier
Reginald James Taylor.
He
is a member of SAPS and as such is the head of Interpol in South
Africa.
42.4
Mr
Lawrence Sithembiso Mrwebi.
He
is currently the Deputy Director of Public Prosecutions in the office
of the Director of Public Prosecutions in Pretoria. From
April 2002
until his suspension from office on 28 January 2009 he was the
Regional Head of the DSO in Kwa Zulu Natal.
42.5
Mr
Prince Mokotedi.
He
is the senior manager enforcement in the employ of the National
Prosecuting Authority.
42.6
Mr
Johannes Hendrikus van Loggerenberg.
He
is an employee of the South African Revenue Services. During the
period 2000 to 2005 he was manager of a special compliance unit
in
the Revenue Service that was specifically established to cooperate
with the SAPS focussing on organised crime.
43.
Prior
to the accused closing his case the state made certain admissions.
These admissions are contained in annexure XX13.
44.
No attack is made on behalf of the accused on the credibility of the
state witnesses except for Agliotti and Muller. No attack
is made on
behalf of the state on the credibility of the witnesses called by the
accused. Needless to say the state challenges
the credibility of the
accused's evidence. These issues will be determined in due course.
45.
Agliotti and the accused are the central role players in the factual
exposition that will follow. From observation whilst giving
evidence,
it appears the Agliotti is a large man of imposing physical
appearance. He is relatively well spoken. He always appeared

extremely well dressed in court. He did not appear to lack
confidence, it emerged from his evidence that when travelling he
stayed
at the best hotels, supported up market clothing stores,
travelled overseas whilst flying first or business class and enjoyed
a
luxurious life style. He deliberately gave the impression that he
liked the better things in life. Flint testified that when he
met
Agliotti (this must have been after 1993), Agliotti was a different
person to the one now accused of serious crimes. It appears
that
Agliotti did not portray at that time the signs of affluence which he
sought to portray in the witness box. The accused was
educated in
Johannesburg where he matriculated. He was awarded a Bachelor of Arts
degree by the University of the North. He qualified
as a teacher. He
thereafter, in the early 1970's, taught at a number of high schools
in South Africa. At an early age the accused
became involved in
politics. He became the secretary of what was then called the South
African Student's Organisation. He was
detained without trial on
two occasions. Ultimately the accused went into exile. Whilst in
exile the accused taught at the Solomon
Mahlangu Freedom College in
Tanzania. The accused was a member of the African National Congress
and was elected as the head of
the African National Congress's Youth
League. At a later stage he was elected to the National Executive
Committee of the African
National Congress. Whilst teaching in
Tanzania he was called to Lusaka by the then president of the African
National Congress,
Mr Oliver Tambo and was sent for further military
training in Moscow. He returned to South Africa in approximately
1991. He was
put in charge of the repatriation programme of the
African National Congress. In 1994 he became a backbencher in the
first democratic
parliament in South Africa. In the first year of the
parliament he was appointed as the South African ambassador to the
United
Nations in Geneva. After
approximately
4 years he was appointed as the director general of the department of
foreign affairs, in 2000 he was appointed as
the national
commissioner of SAPS.
46.
The
accused and Agliotti came into contact with each other for the first
time in the early 1990's. Their contact terminated on 16
November
2006 when Agliotti was arrested by the DSO on charges of the murder
and the conspiracy to murder Mr Brett Kebble.
47.
This
judgment in essence deals with the nature of the relationship between
them. It has to determine whether their relationship
was a corrupt
relationship as contended for by the state. At the outset it should
be stated that the task of determining the relevant
facts was made
even more difficult than usual by the mendacity of the material
witnesses. This will be alluded to further on in
this judgment.
48.
The
issues in dispute must be considered in their correct factual
background. This factual background is largely not in dispute,
in
setting out the background issues that are in dispute will be
referred to from time to time as part of the narrative. These
issues
will however not be addressed in any detail at this stage. As far as
is possible the factual
background
will be set out chronologically by reference to principal events.
Where subsequent events took place which flow from
the principal
event they will be referred to under the relevant principal event
which will interrupt the chronology but facilitates
the exposition of
the facts. Evidence relating to alleged payments made by Agliotti to
the accused and gifts allegedly given by
Agliotti to the accused will
be omitted from this background. They are all denied. They will be
set out after the factual background
has been set out.
49.
In the early 1990's Agliotti met the accused at the head office of
the African National Congress. At that time the accused was
in charge
of social welfare and development within the African National
Congress. Agliotti was considering the importation into
and the sale
in South Africa of second hand clothing. Agliotti was considering
giving a percentage of the profits to cover the
relocation costs of
members of the African National Congress returning to South Africa.
Agliotti and the accused had approximately
twelve meetings. Nothing
came of this and eventually Agliotti and the accused went their own
ways. During this time Agliotti met
the accused's secretary, Ms
Ntombi Sylvia Matshoba ("Matshoba").
50.
Rautenbach lived in South Africa from 1990 to 1999. He was involved
in several businesses. The first business was a trucking
business
known as SA Botswana Hauliers. In approximately 1992 he became
involved in the importation of Volvo trucks from Botswana
into South
Africa. In 1993 he became involved in a business which acquired the
Hyundai motor vehicle franchise. In 1999 he became
aware that an
investigation was being conducted into the Hyundai business. During
November 1999 certain of the business premises
in Germiston were
raided by the SAPS. Shortly thereafter, in late November 1999,
Rautenbach fearing arrest left South Africa for
Zimbabwe.
51.
Agliotti met Muller in 1993. In approximately 1995 they were involved
in a relationship. Thereafter and during 1997 or 1998
they commenced
living together. In June 2003 the relationship ended and Muller moved
Agliotti out of her house. Muller testified
that she moved Agliotti
out of her house because of his inability to tell the truth. Flint
testified that he met Agliotti at the
time Muller met him. He stated
that Agliotti was not the person who appeared in court. He conveyed
that at that time Agliotti had
a far more modest appearance. He then
drove a battered Nissan motor vehicle and wore clothes from
"Edgars
and places like that'.
52.
In 1999 Muller commenced trading with Mr Andrew Ross ("Ross")
as event managers. They originally did so through a
close corporation
known as Monster Marketing CC trading as Maverick. After a period of
time they required a black economic empowerment
partner. Agliotti
introduced them to Mr John Stratton ("Stratton") and Mr
Hennie Buitendag ("Buitendag"). Stratton
was a director of
JCI and a confidante of Kebble. Buitendag was the chief financial
officer of JCI. In her evidence in chief Muller
stated that this was
in 2004 and 2005. In re-examination she stated that the negotiations
commenced in the beginning of 2003 and
then moved into 2004. Flint,
who was intimately involved in the business of Maverick, testified
that Agliotti had overheard him
speak about the need to acquire a
black economic empowerment partner and had suggested that they raise
the issue with JCI. He testified
that this occurred towards the
latter half of 2003. After apparently long negotiations with JCI an
agreement was arrived at pursuant
to which Maverick Masupatsela (Pty)
Ltd acquired 30 % of the business conducted by Monster Marketing CC
trading as Maverick. The
new entity traded under the name of Maverick
Masupatsela (Pty) Ltd and commenced trading as such in 2005. After
the death of Kebble
in September 2005 the entire transaction
collapsed and the deal was reversed.
The
business was thereafter carried on under the name of Maverick
Experience Exhilarator (Pty) Ltd. In due course another black

economic empowerment partner, in the form of African Renaissance
Holdings Ltd, invested in the company. Kogl is a director thereof.

Muller is the chief executive officer of the company; Ross is the
creative director and Flint the financial director. The companies
and
close corporation referred to in this paragraph will for ease of
reference be referred to herein as Maverick.
53.
During
cross examination Muller testified that during the negotiations with
JCi, Stratton requested Maverick to purchase a motor
vehicle for him.
Muller confirmed that this was done and that the sum of R18607.44 was
paid by the company monthly on the car until
she caused it to be
sold.
54.
It
is necessary to refer to the premises occupied by Maverick. In 2000
Maverick moved its premises to Gallagher Place office park
in
Midrand. Thereafter Maverick moved its premises to Mount Roya! Office
Park, also in Midrand, from where it still operates. According
to
Muller the latter move was effected in October 2004. Flint testified
that Maverick moved into its present premises in June 2004.
The lease
commenced 3 months later. He testified that the actual date of the
move, as confirmed by Telkom records, was 4 June 2004.
The Mount
Royal premises comprised of a reception area with 2 showrooms on the
right and the left of the reception area downstairs.
A stairway led
to the top floor. The stairway led directly into a boardroom. Left of
the stairway is a passage leading to an office.
The office had 4
desks for the use of Muller, Ross, Flint and Agliotti. Agiiotti's
desk has since been removed. Muller could see
the entrance to the
boardroom from her desk.
55.
Notwithstanding having the use of a desk at Maverick's premises,
Agliotti played no role in the business affairs of Maverick.

According to Muller, Agliotti had no place, other than coffee shops,
from whence he could conduct his own business. Muller provided
him
with the use of the desk. He would be present at Maverick's in the
morning for a time, except for Wednesday mornings, when
he played
golf. Thereafter he went about his business.
56.
The accused and Agliotti renewed their acquaintance in early 2000. Mr
Paul Stemmet ("Stemmet") ran a security company
known as
Paito. He was a police informer. He told Agliotti that he was going
to attend a meeting with Mr Yusuf Surtee ("Surtee")
and the
accused. Surtee is a director of S Surtee Esquire (Pty) Ltd. This
company owns
various
upmarket clothing stores such as Boss, Grays and Lacoste. Agliotti,
never one to miss an opportunity, informed Stemmet that
he would like
to attend the meeting as he knew the accused. Agliotti attended the
meeting but did not participate therein. According
to Agliotti Surtee
informed the accused that Stemmet had done investigative work for him
and that he could recommend Stemmet to
him and SAPS. Mr Freddy Burger
("Burger") likewise attended the meeting. Burger was a
colleague of Stemmet. The accused
recalled this meeting. He linked it
to the African Hope event to which reference will be made later.
57.
Towards the end of 1999 and the beginning of 2000, Rautenbach
approached a business colleague, Mr James Ramsay ("Ramsay"),

who had been a practising attorney in South Africa, and requested him
to make contact with the NPA on behalf of Rautenbach. The
upshot of
this was that Ramsay met with Ngcuka on a few occasions. Flowing from
these discussions Ngcuka directed a letter to Ramsay.
The letter is
dated 12 June 2000 and is on the letter head of the NPA. The letter
reads as follows:
"We
believe that there is a real possibility of us finding a mutually
acceptable solution in respect of all outstanding criminal
matters
against your client. In our view, it is important for your client to
convince us about his bona
fides.
In
order to enable us to take this process forward, we would like your
client to respond satisfactorily to the following questions:
1.
What
is the purpose of Hewa Bora Limited that was incorporated in
Mauritius by Annerien Nel on your instructions? Who are the
beneficial
owners of this company? Please provide the details of
payments that were made to this company, including the beneficiaries,
dates
and bank accounts.
2.
Are
you aware of any bank accounts, properties or any other financial
instruments that are being used by members of foreign governments
to
launder money in South Africa? Please provide details.
3.
Did
you have any contact, either directly or indirectly, with officers
of any national intelligence sen/ices during 1999? If so,
please
provide dates, identify the people attending and provide the details
of your discussions.
Have
you ever tasked any private intelligence and investigations companies
to investigate any South African government officials?
If so, please
provide the details."
Ramsay
replied to this letter on 3 July 2000.
"I
refer to our meeting at your offices on the morning of Monday 19 June
2000.
Following
thereon i have had further discussions with Billy Rautenbach who has
requested me to convey to you his assurances of his
bona fides and
his desire to find a mutually acceptable solution in respect of all
outstanding matters.
At
our aforementioned meeting I undertook on Billy Rautenbach's behalf
to respond in writing to the 4 questions set out in your
fax to me of
12 June 2000 and which I now do hereunder seriatim: 1. The
purpose of incorporating Hewa Bora Limited ('HBL')
was for it to be
used as a vehicle to participate in a profit sharing agreement
relative to a mining operation in the DRC ('the
agreement'). The
shares in HBL are bearer and accordingly whoever presently holds
these would be the effective beneficial owner.
It
is felt that it would be more appropriate for further details
including details of all payments made pursuant to the agreement
to
be furnished at the Maputo meeting referred to hereunder and Billy
Rautenbach undertakes to do this.
This
question refers specifically to members of foreign governments. He is
unaware of any bank accounts, properties or any other
financial
instruments being used by such members for the purpose stated and is
of the view that in the light of exchange control
restrictions and
the volatility of the Rand currency South Africa is an unlikely venue
for such activities.
He
did have contact with officers of the South African Intelligence
Services during December 1999. As I advised you at our meeting
of
Monday 19 June 2000 he met with Andries and Raymond in Maputo and his
father met with these same gentlemen in Pretoria earlier
this year.
Yes.
A private investigative company/ies was/were requested to investigate
Mr Nick Rowell (attached to the Investigating Directorate)
and a Mr
Badenhorst of the Receiver of Revenue's department. There may have
been others who were investigated but this information
is peculiarly
within the knowledge of Mr Doppies Kotze who was employed in the
group's security department.
When
I met with you at your offices on Monday 19 June 2000 it was arranged
that subject to the issues of bona fides being satisfactorily

addressed a meeting would be held in Maputo which Billy Rautenbach
would attend and to which meeting you would despatch mandated

representatives to attend. You will recall that we provisionally set
Thursday 13 July 2000 and Friday 14 July 2000 as the dates
for such
meeting.
I
would now like to suggest that if convenient and subject to the
availability of flights from Johannesburg on the morning of Tuesday

11 July 2000 the Maputo meeting be held on Tuesday 11 July 2000. If
this is not suitable we can keep to the date of Thursday 13
July
2000. While it would be preferable to complete the discussions in one
day they can if necessary be extended for a further
day.
I
confirm that at this meeting we will in addition to debriefing from
your side also address the cessation of investigations and
the matter
of an acceptable resolution in respect of outstanding matters and
that the representatives who will be sent by you will
also be fully
mandated for such purposes.
I
have made plans to be available in Johannesburg from the morning of
Tuesday 11 July 2000. At the Maputo meeting Billy Rautenbach
will
furnish any further information you may require relative to your fax
to me of 12 June 2000 and any other relevant information.
You already
have his assurances of his good faith and willingness to cooperate.
I
would hope, as we discussed at our meeting on Monday 19 June 2000,
that at the Maputo meeting we will be able to reach an overall

arrangement including the cessation of the investigations and a
solution in respect of all outstanding matters.
While
I have assured Billy Rautenbach of your good faith I must however ask
you to kindly confirm to me in your response hereto
that no attempt
will be made on the part of the South African authorities to
extradite Billy from Mozambique, hinder his arrival
and departure
therefrom or to in any way either directly or indirectly interfere
with his liberty when he visits Mozambique for
the Maputo meeting.
I
would appreciate hearing from you urgently so that final arrangements
can be made for the Maputo meeting."
As
is apparent from this letter Ramsay had a meeting with Ngcuka on 19
June 2000 at which meeting it was agreed that a meeting would
be held
with Ngcuka's representatives and Rautenbach in Maputo in July 2000.
The meeting was duly held. Ngcuka was represented
at the meeting by
Mr P Richer ("Richer"), who introduced himself as working
for Ngcuka, and Mr J Maqetuka ("Maqetuka")
who was a deputy
director of the NIA at that time. According to Leask, in 2000 Richer
was in fact one of the Deputy Directors General
of the National
Intelligence Agency. In view hereof it is perhaps not surprising that
not much was discussed in regard to what
Rautenbach described as the
Hyundai case. What was discussed was mainly intelligence issues
relevant to issues outside South Africa's
borders. A subsequent
meeting was held at the request of the South Africans with some
officials from the DRC. Thereafter Rautenbach
received a letter from
Richer advising to the effect that all negotiations or communications
were terminated.
58.
In early 2000, and after Agliotti had renewed his acquaintance with
the accused, Muller was involved in raising money for challenged

children in South Africa. It was part of an international project.
The South African
project
was called African Hope. Agliotti approached the accused for
assistance and to obtain the assistance of SAPS in the project.
The
accused was favourably disposed to the project and eventually
appointed Mr Ben van Deventer to liaise with Agliotti. Eventually
a
successful event was held in early 2001. The accused was instrumental
in getting the involvement in the event of 1000 police
officers and
arranging for the closing of some of the streets of Cape Town for a
torch run from the Table Bay Hotel to the steps
of Parliament. During
this time Agliotti had meetings with the accused at the offices of
Maverick and at SAPS head quarters as
well as in Sandton. According
to Agliotti he and the accused would frequent coffee shops in the
Sandton shopping centre. He mentioned
the Brazilian Coffee Shop and
Europa Coffee Shop. The accused did not appear to dispute this.
Agliotti further testified that he
and the accused would also shop
together. This was however disputed by the accused and will be
referred to later.
59.
It was at the time of this project that Muller and Flint first met
the accused. According to Muller she saw the accused after
the
completion of the African Hope project. She testified that she saw
him a few times at Maverick's premises at the Gallagher
Place office
park and on average
twice
a month at Maverick's premises at the Mount Royal office park
60.
It appears from the evidence that from approximately the time of
African Hope the relationship between the accused and Agliotti

developed. The nature of the relationship and its development are in
dispute and will be referred to later.
61.
The Kya Sands drug bust occurred on 3 January 2002. Agliotti
testified that he was approached by a Chinese lady known as Madam

Chen to assist in the delivery of 2 twenty foot containers to Kya
Sands for, what he regarded, as a ridiculous sum of money. Agliotti

informed Stemmet hereof and instructed him to arrange for a
controlled delivery at Kya Sands at Bryanston. The operation
conducted
by the SAPS was successful.
62.
In cross examination Agliotti accepted that he phoned the accused and
advised the accused as well of his suspicions prior to
the police
operation. It was also put to Agliotti that he informed Mr Morne Nel
of his suspicions as well prior to the police operation.
Agliotti was
less emphatic in his acceptance of this proposition. The issue was
not taken further.
63.
Nel testified that Stemmet received a reward of R500000 from the SAPS
for the information supplied by him. He Nel testified
that on 3
January 2002 he was informed by Stemmet that he had received a
request to provide an armed escort and to transport expensive
tiles
that had been imported from China from City Deep to Kya Sands for a
remuneration of R70000. Nel met Stemmet and an operation
was planned.
This operation resulted in the arrest of 7 people and the
confiscation of R1,2m worth of Mandrax tablets. After the
arrests the
investigation of the incident was handed to the Organised Crime
section of the SAPS. Nel testified that at the time
of the arrests
and the confiscation of the drugs he was unaware of any roie played
by Agliotti in the furnishing of information.
64.
According to Agliotti he telephoned the accused from the airport
after the police operation and before leaving for overseas.
He asked
the accused if he was happy with the operation. According to Agliotti
the accused was ecstatic. Agliotti phoned the accused
again from
Italy and asked if there was any reward payable to him. It is
emphasised that this occurred in January 2002 and it indicates
the
state of the relationship between the accused and Agliotti at that
stage.
65.
Nel testified that Stemmet received a reward of R500000 from the SAPS
for the information supplied by him. He identified a
document
contained in exhibit A25 entitled
"Information
Note"
as
having been completed by him to motivate the reward. In the context
the informer referred to was Stemmet. It is necessary to
quote
certain portions of this document.
"1.1
On 2002-01-03 registered human source operational under the auspices
of SR29660 reported that a container of drugs, originating
from Panyu
Chemical Import & Export Corp. (Panya Republic of China) arrived
in Johannesburg from Durban on 2002-01-02. Information
on hand
indicated that the container will be moved on 2002-01-03 to The
Randburg Public Storage facility in Kya-Sands, Johannesburg."
and
"3.1
Registered Human Source SR29660 infiltrated the syndicate managed by
the Chinese Triads under very dangerous and difficult
circumstances.
The source was operational for a period of thirty (30) working days
in order to gather the necessary intelligence
which led to the
success mentioned. He is still in place pertaining to other
containers and more successes is expected in the next
two weeks."
And
finally
"3.4
SR29660 played a vital role in the investigation of Chinese Foreign
Nationals involvement in the smuggling of drugs and
abalone between
South Africa and China/Hong Kong. The source is still well placed
amongst the Chinese and Taiwanese Triads and
more intelligence are
currently being generated in order to prevent more drugs been
imported
into
South Africa and abaione exported to China."
(sic).
The accused had to approve the payment of the reward. His approval is
apparent from his signature to a document to which
the information
note was attached.
66.
Nel testified further that at a later stage he was approached by
Stemmet. Stemmet informed him that Agliotti had been helpful
in the
process of acquiring information in respect of the Kya Sands
operation and that he wished to give Agliotti R100000 of the
reward
that he had received. This was subsequently done in his presence in
Sandton. According to Nel there was a relationship between
the
accused and Stemmet.
67.
In cross examination it was put to Agliotti that in a witness
affidavit deposed to by Stemmet, Stemmet made serious allegations

against Agliotti in respect of the Kya Sands transaction. It was put
to Agliotti that he had asked Stemmet to assist in the transportation

for a large sum of money. This had aroused Stemmet's suspicions and
he had informed Nel thereof. Agliotti denied this proposition
and
Stemmet never testified. In addition it was suggested to Agliotti in
cross examination that the only reason that he received
R100000 was
because he was not a registered
informer
at the time the information was given. This was not established by
the accused in evidence.
68.
Leask
had access to the police docket in the Kya Sands matter. From the
docket it emerged, according to Leask, that charges had
been
withdrawn against three of the accused. As to the remainder of the
accused Leask could find no document in the docket relating
to them
but there has been no prosecution at all in the matter.
69.
At
the end of January 2002 Stemmet informed Nel that he wanted to
introduce him to the source of his information who could potentially

provide further information relating to international drug
trafficking into South Africa and the exportation of perlemoen to
China.
On 23 January 2002 Nel was introduced to Agliotti. Agliotti
was paid a recruiting fee of R10000 and on 30 January 2002 he was
registered
as an informer. He remained an informer until early 2003
when his services were terminated. Agliotti's version differs only
slightly
from that of Nel and need not be considered further. Save
for the R10000 recruitment fee and the R100000 referred to above,
Agliotti
did not receive any further payments from the SAPS.
70.
In
early 2003 Agliotti met Rautenbach in Zimbabwe. He was introduced to
Rautenbach by Mr Brian Baxter ("Baxter") as someone
who
could assist in moving Rautenbach's Hyundai matter forward in South
Africa. Baxter was a friend of Rautenbach's father. According
to
Rautenbach he had unsuccessfully attempted to resolve his issues with
the NPA. He did not believe that the state had a case
in the Hyundai
matter. He stated that he wished to gain access to the authorities in
South Africa so that he could explain what
had occurred in the
Hyundai matter. He was unwilling to return to South Africa as there
was a warrant for his arrest. Agliotti
said that he had contacts in
South Africa. He mentioned amongst others the accused and Ngcuka.
71.
Agliotti
said he needed more information and Rautenbach undertook that he
would make his attorney in South Africa available to furnish

documents and information. When Agliotti returned from a trip the
attorney met Agliotti at the airport and handed htm a file. The
file
contained the letter referred to in paragraph 57 supra. Agliotti
added that Rautenbach was of the view that Ngcuka had abused
his
office and had tried to extort a bribe from Rautenbach. Agliotti
subsequently handed this letter to the accused.
73.
According to Rautenbach Agliotti returned to Zimbabwe about 3 months
later. He had a magazine or brochure with him which contained
a
photograph of him and the accused. Rautenbach recalled that Agliotti
came on a further occasion to see him in Zimbabwe. On this
occasion
Agliotti informed Rautenbach that he was no longer working with
Baxter and that he required a fee of a million rand to
take
Rautenbach's issue further. Rautenbach declined to pay this amount.
Rautenbach testified that he met Stratton at Harare airport
together
with Agliotti at the request of Agliotti. This must have occurred
after the commencement of Agliotti's relationship with
the Kebbles
which will be referred to hereinafter. According to Rautenbach
Agliotti informed him that Stratton was involved at
a high level with
JCI and that JCI was interested in expanding its mining interests in
the DRC. Rautenbach also had mining interests
there. They accordingly
discussed mining possibilities. Stratton then enquired whether
Rautenbach had any
"dirt
or any bad information"
on
Ngcuka. Rautenbach replied that the only information he had was the
correspondence referred to in paragraph 57 supra.
74.
It is not dear on the evidence precisely when Agliotti met Kebbie
and Stratton. As will appear hereinafter it was certainly
prior to 28
August 2003. Agliotti testified that he was introduced by Stemmet to
Kebbie and Stratton. Stemmet indicated that Agliotti
had a close
relationship with the accused. According to Agliotti the Kebbie
family was a prominent mining family in South Africa.
They
"owned'
JCI
and Consolidated Managements Services Limited ("CMMS").
CMMS is a subsidiary company of JCI. Kebbie was the
chief executive
officer of JCI. Stratton was a director of JCI and a confidante of
Kebbie. Buitendagt was the chief financial officer
of JCI. Mr Roger
Kebbie is Kebble's father and was also a director of JCI. Stemmet was
the head of Kebble's security.
75.
According to Agliotti the Kebbles had problems with Associated
intelligence Network ("AIN"). AIN is a private security

company and it had been appointed at the instance of Mr Mark
Wellesley-Wood ("Weliesley-Wood") and Durban Roodepoort

Deep Limited ("DRD"). Wellesley-Wood was the chief
executive officer of DRD which is a gold mining company. This lead
to
the Kebbles having a complaint which they wanted investigated at the
highest level. Agliotti approached the accused with a letter.
The
accused indicated that he would arrange for the complaint
to
be presented. A meeting was duly arranged with Commissioner Mphego
("Mphego"), Commissioner Lalla ("Lalla"),
both of
the SAPS, and various other members of the SAPS. JCI was represented
at the meeting by Mr Willem Heath ("Heath"),
Stratton and
Agliotti. Heath was an advisor to the Kebbles. A follow up meeting
held at a house in Melrose between Mphego and another
person, whom
Agliotti assumed worked for Mphego, and Stratton and Agliotti. The
house referred to was utilised by Kebble and his
associates as a
meeting place.
76.
Agliotti testified that after he had set up these meetings the
Kebbles were grateful to him. He added that the Kebbles had a
whole
host of problems. He cemented his relationship with them based on his
knowledge of the commodity market in Africa and because
of his
relationship with the accused. The Kebbles wanted
"the
accused to be onboard and to have access to the accused',
Agliotti
indicated that to provide those services he required a consulting fee
of $1m. The Kebbles agreed to pay that amount. The
fee was Agliotti's
to do with as he wished.
77.
Agliotti introduced the accused to Mr Gavin Varejes ("Varejes")
who he had met at his gym. Varejes is a businessman.
It is not clear
on the evidence when this
occurred.
Prior to introducing Varejes to the accused, Agliotti had introduced
Varejes to Stemmet who performed certain investigations
for Varejes.
As will become apparent hereinafter Stemmet's relationship with the
Kebbles was terminated and the relationship between
Agliotti and
Stemmet deteriorated as a result thereof. It is accordingly assumed
that this introduction occurred prior to the termination
of Stemmet's
relationship with the Kebbles. Thereafter Varejes, through Stemmet
and Agliotti, requested a meeting with the accused.
According to
Agliotti he asked Varejes to attend a dinner at Varejes' home in
Morningside. The accused attended the dinner. As
far as Varejes is
concerned, Leask testified that during a period in excess of 2 years
those involved in the investigation were
unable to get Varejes to sit
down and speak to them. He added that they had gone to great lengths
to endeavour to get him to come
for a consultation.
78.
At the insistence of Kebbie, Agliotti invited the accused to attend 5
to 6 dinners with amongst others Kebbie and Stratton.
Agliotti would
meet the accused en route to the dinner and then follow him to the
venue. Mr Clinton Nassif ("Nassif")
attended one such
dinner.
79.
Agliotti had met Nassif. He was introduced to Agliotti as being
involved in the security industry and as having good contacts
and in
particular within the South African Revenue Services. Kebble was
dissatisfied with the performance of Stemmet as head of
security.
Agliotti introduced Nassif to the Kebbles as somebody well connected,
in particular well connected to the revenue services,
and connected
to the accused as well. Nassif then replaced Stemmet as head of the
Kebbles security.
80.
In August 2003 Mphego telephoned Agliotti and informed him that he
needed to see him urgently. Agliotti saw Mphego on 28 August
2003.
Unbeknown to Agliotti the interview was videoed. The meeting was
mentioned during Agliotti's evidence in chief. The video
was
introduced in the cross examination of Agliotti, It was provisionally
admitted into evidence. The video is exhibit 2A and the
transcript
thereof is exhibit 2B. The accused saw the video 2 to 3 weeks after
Mphego had recorded it.
81.
According to the transcript:
81.1
Mphego refers to
"that
Kebble stable"
and
that SAPS have been engaged in a variety of interactions with them as
Agliotti knows.
81.2
Mphego
stated that SAPS have been monitoring a lot of their communications
and activity and that this monitoring has been done legally
or
illegally.
81.3
Mphego
had reviewed whatever had been recorded alone.
81.4
What
concerned Mphego arising out of the review is
"One
point something million to Nascom and what have you".
Mphego
stated that he knows that the aforegoing was said. Agliotti responded
"Mphegs
its got nothing to do with Nascom, it is my eh... it is my business
account offshore and its got nothing to do with
him, and I wouldn't
lie to you. I am dead serious; it's got nothing to do with National
Commissioner
and
"In
fact it is a lot more. There is another 1.5 million that is needed
for Tobacco in Zimbabwe to buf.
81.5
Mphego
responded and said the machines
don't
lie.
"What
you capture you capture and so far what I am saying to you Glen is
that this footage is only with me."
Mphego
asked
"Why
would this name of Nascom be dropped eh on the footage you know to
say you know Nascom this and this and I don't know
maybe it is what
is going on between you and them, some, some ..."
81.6
Agliotti
responded by saying that he was
"being
honest I am doing a deal with them where I am saying to them it is
only between them and I. It's got nothing do with
National
Commissioner and I am telling you honestly again I am not going to
lie to you. Right I said to them guys I will consult
for you and like
this I am taking them to see Obasanjo in Nigeria that's for JCI"
and
"It
has nothing to do with me, I don't have the infrastructure and the
means of JCI or 4 or 5 billion to go put up a fertiliser
plant in
Nigeria with eh palm oil extraction plant and float glass plant at
Cross Rivers of Donald Due, so they have got to pay
me for that'.
81.7
Mphego
then stated that his dilemma was that if he did not get
"flesh
on the footage",
to
say what it meant, he was
"obligated
to go and say to Jackie, this is what is on the table."
81.8
Agliotti
responded by stating that he appreciated that Mphego was honest with
him and had called him to the meeting. He added "/
used
Jackie's name and I am not lying to you. I shouldn't have, right in
the beginning, then I said: 'listen guys Jackie is, Jackie
obviously
won't take a cent', we all know that I said its got nothing to do
with Jackie now this is between you and I. This was,
and uhm and I
have told them okay, I have said to them I want one and a half
million dollars to consult for, and I will tell you
that I took them
to Zimbabwe..."
Agliotti
continued referring to his services and concluded by saying
"Okay,
so I am being totally honest with you, right in the beginning they
wanted to meet with Jackie I asked Jackie and he
said no, right in
the beginning he said I want you must deal with Mphego and Ray right.
Agliotti
added that when he phones the accused whom he refers to as Jackie and
Jacks they talk on purely
"friendship
things".
81.9
Mphego
then voiced his concern that some judicial enquiry may find the
recording which had not been given to the accused.
81.10
In
answer to a question by Mphego Agliotti responded
"Yes
they know it is not for Jackie I have told them I said listen guys
(inaudible) I used but it is for me Glen, you pay me
to do a job, it
is like anybody you are going to pay me a consultants fee, I am doing
it. So they are quite happy its true they
are quite happy."
81.11
Agliotti
then offered the following
"...John
will
often say to me please speak to Mphego, ask him what's happening and
I'm to tell you and I will say yes John, I will and meanwhile
I won't
cause I
know
you have got so much on your plate, and so much on your head. It is
like remember that I phoned you I said please Mphegs phone
back
urgent which you did and I appreciate it. I didn't even know what it
was about. So yes that often happens when John will say
please ask
Mphego to phone me and you know I haven't heard from him, and you
know I will phone you and say Mphegs do you mind to
speak to John
that sort of inter-reaction happens with John and, I not daily, but
he does and often it's the case I don't even
phone you cause I think
you know what you are so busy you are methodical you know what you
are doing."
81.12
Agliotti
stated that he would give nformation to Mphego
"of
a shipment coming in from India of eh it is nothing
...I
know Paul has given Nascom some samples it is not that, that's coming
via Mozambique that is Heroin shit this is Mandrax powder."
81.13
Agliotti
referred to a shipment of mandrax powder and
"chocolate"
that
was being brought into South Africa from India. He referred to two
meetings that he had with an intermediate party. He stated
that he
would give the necessary information to Mphego. During the course
hereof
Agliotti
added that the
"big
Mandrax bust that we did with Nascom about two years that was through
me...I gave Jackie everything in that whole big
bust..."
81.14
Agliotti
added that he deals with a lot of gangsters. He continued "/
am
flashing you now you will hear me talking about cigarettes, Peter
Stuyvesant, or contraband you will hear me say bring it but
they have
not come forward yet there is a lot of people phoning me for and I
know all the gangsters unfortunately you know good
people and you
know bad and I am telling you know, that is how we did that Mandrax
bust through the Chinese they came to me can
I clear it, and I said
yes, yes and I phoned Jackie and we hit it, the one in Bryanston for
400 million or whatever. So if you
hear that on my phone I deal where
guys offer me cigarettes, contraband they offer me all sorts of shit
you will know at least
you now about it now if it's anything
contraband, cigarettes, I will come and give it to you."
81.15
Agliotti
referred to information which he gave to the DSO in Durban which led
to "2
busts".
He
added ... 7
gave
it to them one is Minora Blades and the other was Peter Stuyvesant
then they said no they are going to charge me."
Agliotti
indicated his outrage at the intimation of being charged as he was
the source of the information.
82.
Flint
testified to attending a meeting at JCI with Agliotti, Stratton and
Buitendag in December 2003. The meeting was in connection
with the
black economic empowerment deal that Maverick was seeking to conclude
with JCI. At a point during the meeting Kebbie,
who was not part of
the meeting, enquired from Stratton and Buitendag whether they had
sorted out the company that was needed for
the DRD matter. Agliotti
enquired what they needed. They said that they had to form a company
as they were going to do some security
and development work. Flint
was the sole shareholder of Spring Lights 6 (Pty) Ltd ("Spring
Lights"). It was agreed that
Flint would sell his shares in the
company for the sum of R350000 which according to Flint was the
amount of his shareholders loan
account. The sum of R350000 was paid
into Flint's bank account the next day.
83.
Spring
Lights had a bank account with Nedbank Ltd's Petticoat Lane branch in
Midrand. Flint had signing power on the bank account.
After Spring
Lights was taken over Flint continued operating on the bank account.
He would draw and sign cheques on the instructions
of Agliotti. If
the
drawn
cheques were payable to a particular person, except his daughter, he
would hand the drawn cheque to Agliotti. If the cheque
was drawn in
favour of Muller he would personally hand it to her. If the cheque
was drawn to cash, he would cash the cheque and
give the cash to
Agliotti as soon as he could.
84.
According
to Flint, despite his signing all the documentation necessary for JCI
to take over Spring Lights, it failed to do so despite
complaints
from him. Arising from his complaints, so Flint testified, he was
asked to procure Agliotti's signature to operate Spring
Lights bank
account. This he said occurred in mid 2004. (It is not apparent how
this resolved Flint's complaints)
85.
According
to Friedman during the period 5 December 2003 to 30 December 2005
R39227566.51 was deposited into the account of Spring
Lights, During
broadly the same period cheque payments totalling R36197888.45 were
made from the account. Friedman further determined
the source of the
funds deposited into the Spring Lights account. He determined that
deposits aggregating R26 684 000 originated
from CMMS. Deposits
commenced on 5 December 2003, when R4m was deposited, and terminated
on 18 January 2005. Save for the aforementioned
deposit
of
R4m and the last deposit of R600000 which was made on 18 January 2005
all these deposits were made in 2004, Deposits totalling
R6 391 771
were made into the Spring Lights account where Agliotti is reflected
as the depositor. These deposits save for the first
one which was
made in December 2004, were made in 2005. Deposits totalling R1m were
made into the aforesaid account by Mr Roger
Kebbie during 2005.
During 2004 further deposits were made into the aforesaid account by
Heath Forensic Investigators and Consultants
CC. According to
Friedman these deposits in fact emanated from CMMS and were routed
through the aforementioned depositor. Other
small deposits were made
in and credits given to the account. In regard to payments from the
Spring Lights account, Friedman testified
that during the period 1
December 2003 and 31 December 2005 86 cheques aggregating R2 862
755.16 were cashed. In December 2004
6 cheques totalling R665000
were cashed. Details of these cheques appear from annexure J (exhibit
C3 annexure J p141). The 6 cheques
were cheque 212 dated 1 December
2004 for R10000; cheque 214 dated 6 December 2004 for R250000; cheque
215 dated 6 December 2004
for R5000; cheque 219 dated 10 December
2004 for R100000; cheque 222 dated 13 December 2004 for R200000 and
cheque 226 dated 20
December 2004 for R100000.
86.
Sanders testified as to a meeting which he attended together with
Nassif and Mr Tamo Vink ("Vink"). Vink was an advisor
of
Nassif. At the meeting Nassif informed Sanders that he had just
secured a contract with JCi to set up an investigations company
with
surveillance teams and that the investigations company would be paid
a monthly retainer. Sanders agreed to join Nassif in
this endeavour.
Central National Security Group (Pty) Ltd ("CNSG") was the
vehicle in which the aforesaid business was
conducted. It was formed
in 2004. Sanders was the operational director. Nassif informed
Sanders that he had appointed Matshoba
as a director of CNSG. Nassif
stated that she had a close relationship with the accused. Sanders
understood that Matshoba had
been the accused's secretary and that
she had strong political and business contacts.
87.
A few weeks after joining Nassif, Nassif informed Sanders that he
wanted him to meet Agliotti as he had close ties with the
accused. He
added that the accused was unhappy with the services rendered to SAPS
by Palto and that Agliotti wanted to introduce
them to the accused so
that they could perform those services. The meeting was held during a
game of golf at the Dainfern Country
Club. The services rendered by
Palto included making
"drug
busts"
and
the monitoring of the illegal movement of containers across the
borders of the country. Agliotti informed Nassif and Sanders
that the
relevant employees of Palto were appointed police reservists with the
rank of captain and that he would arrange that they
get the same
appointment certificates.
88.
According to Agliotti he set up a meeting with Nassif and the accused
at Melrose Arch as Nassif wanted to meet the accused.
Agliotti was
not certain as to who attended the meeting in addition to himself,
Nassif and the accused. Sanders could have been
present but Agliotti
was not certain. At the meeting Agliotti asked the accused if he
could afford Nassif the same opportunity
of working with SAPS as had
been afforded to Stemmet and Palto.
89.
Some time later Agliotti called Nassif. As a result Sanders went to
the premises of Maverick where he and Agliotti met the accused.
The
accused arrived in a black Mercedes Benz motor vehicle and in
uniform. The purpose of the meeting was for the accused and Sanders

to get to know each other. During the meeting the accused said that
Agliotti had spoken to him about the other matter and that
they would
have a meeting in that regard. Sanders took this
to
mean performing the services referred to above and being appointed as
captains in the SAPS reserves force. According to Sanders
the accused
asked him if he had been a member of the SAPS before. Sanders
informed him that he had been a member and that he had
worked in the
organised crime unit and the endangered species unit. He did not tell
him that he had worked in the security branch
and in a unit known as
Koevoet. The accused's version of this is somewhat different.
According to the accused Sanders told him
that he had been a member
of the SAPS task force. On returning to his office the accused made
enquiries as to the accuracy of what
he had been told by Sanders. He
ascertained that Sanders had been working 7'n
endangered
species, Flora and Fauna and something of that sort.
90.
Subsequently a meeting was held with the accused at The Meat Company
in Melrose Arch. The meeting was attended by Sanders, Nassif,

Agliotti, Matshoba and the accused. The accused stated that it was
not possible for any services to be rendered to SAPS. He stated
that
he under too much pressure from senior police officers in the
utilisation of the services of private security companies in

performing services for the State or for SAPS. He stated that he had
a proposition in regard to a mission in the
Sudan.
He was about to send 80 policemen to the Sudan. He had international
funding in respect thereof. The accused put a document
on the table
and indicated that he needed certain services to be performed. Nassif
looked at the document and passed it on to Sanders.
Sanders spent
some time after the meeting going through the document and indicated
thereon what services could be supplied by CNSG
or others affiliated
to them. When Sanders had completed working on the form he handed it
to Matshoba. The accused denied Sanders's
evidence and stated that he
did not know how they manufactured that.
91.
A
few weeks after the document was handed to Matshoba, she brought what
was described as a tender document to CNSG. The proposed
tender was
for the supply of body armour to SAPS. The tender was completed and
submitted. It was not successful.
92.
A
further meeting was held at the Melrose Arch Hotel on a Saturday
morning. Nassif, Sanders, Matshoba, Agliotti and the accused
were
present at the meeting. It was a short meeting as the accused had to
attend a rugby match and was wearing a rugby jersey.
Nassif asked the
accused if there was any news in regard to the Sudan contract. The
accused replied that he had not received funds.
He added that he had
not forgotten them and that things were stiii on track. The accused
denied having ever worn a rugby jersey.
93.
Yet a further meeting was held at the Meat Company in Melrose Arch.
This meeting was attended by Nassif, Sanders, Matshoba,
Agliotti and
the accused. It was also attended by Mr Eyhab Jumean ("Jumean").
Jumean is a Jordanian citizen and apparently
is a wealthy banker. He
married an international model who is a South African. Agliotti asked
the accused to attend this meeting.
According to Agliotti, at the
commencement of the meeting, he explained to the accused very briefly
the purpose of the meeting
and thanked him for coming to the meeting.
The meeting took place at request of Nassif in regard to an
investigation they were
busy with. The investigation related to
Jumean and his wife, it was alleged that Jumean was being blackmailed
by a person who was
named and who was a police reservist. According
to Agliotti the amount involved in the blackmail was £500000.
The purpose
of the meeting was to inform the accused of the blackmail
and the fact that it was being perpetrated by a police reservist and
to have the alleged perpetrator's reservist status revoked. According
to Sanders this subsequently did happen. At this meeting the
accused
stated that he did not like the fact that CNSG empfoyed Mr Andre
Burger ("Burger") and Mr Henri Beukes ("Beukes").

He stated that if they wanted a working relationship with him must
dismiss the two men. They were dismissed.
94.
The accused's version as to who called this meeting differs from that
set out above. According to the accused Nassif telephoned
him
directly to arrange this meeting. The purpose of the meeting was that
Nassif wanted to get recognition for the rescue of a
child that had
been kidnapped. This was the first issue discussed at the meeting.
Thereafter discussion took place in respect of
the alleged blackmail
of Jumean. After the meeting the accused made enquiries in regard to
the reservist. He ascertained that the
reservist was facing a large
number of charges arising out of his activities as a bouncer. He
informed the Provincial Commissioner
of Gauteng of this and the
alleged blackmail. The matter was thereupon dealt with.
95.
Sanders testified as to an incident that involved Burger. He was
involved in the rescue of the kidnapped child. He lied to the
SAPS
investigators and was arrested. Sanders was informed hereof and of
the fact that he was being handled roughly by the police.
He phoned
Agliotti. Agliotti said he
should
phone the accused direct. Sanders already had the accused's telephone
number saved on his cellular phone. He phoned the accused
and told
him that he gave the order to carry out the rescue. Sanders asked the
accused if they could not release Burger. Three
to four hours later
Burger was released.
96.
During September 2004 Mokotedi joined the NPA. His function was to
investigate allegations of fraud within the NPA and the DSO.
When he
joined the NPA there was an ongoing investigation into allegations
that members of SAPS were furnishing information to
the DSO and that
the members of the DSO were presenting the information as if acquired
from their own sources. Money would then
be paid out of the so-called
C-fund for that information. When Mokotedi took over the
investigation he was told by a member of
the DSO that he should be
looking at the big fish. He was directed by this member of the DSO in
this regard to Mr Jeff Ledwaba
("Ledwaba"), who was a
senior member of the DSO. During this investigation of Ledwaba the
name of the senior prosecutor
for the state came up as being
implicated in the abuse of the C-fund. As Mokotedi was not obtaining
assistance in the investigation
and was in fact being blocked in the
investigation despite a meeting with Ramaite and Advocate McCarthy
("McCarthy")
he
reported
the matter to the accused. McCarthy was the head of the DSO.
According to Mokotedi a meeting took place between his superior
in
the NPA, the accused, the director general of the Department of
Justice and the head of the NIA. This meeting took place somewhere

between the middle and the end of 2005. At the meeting the accused
stated that he was about to arrest senior DSO members because
of
their abuse of the C-fund. It appears that the only prosecution
arising out of all of this is the prosecution against Ledwaba
which
is still proceeding.
97.
Pikoli
was appointed in February 2005 as the National Director of Public
Prosecutions. At the time of his appointment there were
no problems
in the relationship between the accused and Pikoli.
98.
Pikoli
and the accused were co-chairs of a task team that was established in
the Eastern Cape known as the Joint Anti-Corruption
Task Team or
JACTT. Soon after Pikoli's appointment, in approximately May or June
2005 Pikoli and the accused flew in a police
jet to the Eastern Cape
to visit this task team. Whilst on this trip and while walking with
the accused, the accused asked Pikoli
why they were not dropping the
charges against Rautenbach. Pikoli asked why they should drop the
charges. The accused replied
that
he was in possession of a letter that could cause embarrassment to
both Ngcuka and the DSO. Pikoli dismissed the comment because
he felt
it was not a matter that the accused should be concerned with as it
was a matter that related to the DSO and not to the
police. The
accused denied Pikoli's evidence as to the discussion and testified
that the issue relating to the letter was raised
with Pikoli in the
accused's office in December 2005. This issue is in dispute and will
be dealt with later.
99.
Agliotti testified that he requested the accused to have a meeting
with Mr James Tidmarsh ("Tidmarsh") who represented

Rautenbach. Tidmarsh is an attorney practising in Switzerland. He and
Rautenbach had mining interests in the DRC ("DRC").
The
accused testified in cross examination that the meeting was convened
at his request. The meeting was held in a business lounge
on the 23
rd
floor of the Sandton Towers Hotel in Sandton. According to Rautenbach
the meeting took place on 19 April 2005. Rautenbach remembered
the
date as he regarded the holding of the meeting as a turning point in
his attempt to resolve his issues. The accused attended
the meeting
in full police uniform. It is common cause that at least the letter
dated 12 June 2000 directed by Ngcuka to Ramsay
was discussed at the
meeting.
100.
Rautenbach
testified that after the meeting Tidmarsh had telephoned him.
Thereafter Tidmarsh went to the DRC to see Rautenbach.
Tidmarsh
informed Rautenbach that he and Agliotti had met with the accused and
discussed Rautenbach's case. Tidmarsh added that
Agliotti obviously
had the contacts and that maybe this was the way of taking the matter
forward. Tidmarsh added that Agliotti
wanted a fee of $100000.
Tidmarsh thought that the amount stipulated by Agliotti was
exorbitant but he and Rautenbach agreed to
pay it.
101.
A
few days later Agliotti flew in to the DRC. He left the DRC a few
hours after his arrival on the same aeroplane as he had arrived
in.
He met Rautenbach and Tidmarsh in Rautenbach's motor vehicle in the
car park at the airport in Lubumbashi. Agliotti sat in
front of the
vehicle with Rautenbach. Tidmarsh sat in the back. Tidmarsh handed
$100000 over to Agliotti. Rautenbach confirmed
that the money was
paid over as he was trying to resolve his issues in South Africa and
he believed that Agliotti had the necessary
contacts to raise his
matter and get it resolved. The reason for this belief was founded in
the fact that the doors of the NPA
were closed to Rautenbach.
Agliotti had managed to at least raise the issue with the
accused.Rautenbach regarded that as important
so that he could try
and find a conclusion to his case.
102.
It was put to Rautenbach in evidence in chief that it appeared from
Agliotti's passport that he had travelled to the DRC
on 22 April
2005. He was asked if the payment could have occurred on that date.
He responded in the affirmative. He was then told
that there was a
subsequent entry in Agliotti's passport which indicated that he had
been in Lubumbashi on 6 January 2006. He was
asked if the payment
could have occurred on that date. He responded that it could not
have. Rautenbach added that he and Tidmarsh
had had a commercial
disagreement in about August 2005. This led to Tidmarsh applying from
the British Virgin Islands for, and
obtaining on 6 January 2006, an
order for the liquidation of their company. Since the disagreement he
and Tidmarsh were not on
talking terms. It should be added that
Agliotti was not certain when he received the payment of $100000. He
stated in re-examination
that he was not sure when it occurred but
that he recalled that it occurred on his last visit to Rautenbach in
Lubumbashi. This
occurred in 2006.
103,
According to Agliotti he had intended giving the accused $40000 of
the $100000 that he had in fact received. He testified
that he in
fact had only given him a total of $30000 on three separate
occasions.
104.
In cross examination Rautenbach was referred to an e-mail which had
been attached to an affidavit deposed to by him. He had
not been
referred thereto during his evidence in chief. Rautenbach testified
that Ramsay and Tidmarsh were debating as to how to
advance his
issues after the meeting with the accused had been held. The e-mail
was sent by Tidmarsh to Rautenbach. He thought
that he had received
the e-mail a couple of weeks after the meeting with the accused. It
is apparent that Tidmarsh is commenting
on the contents of a
memorandum and suggesting amendments thereto.
105.
The e-mail reads as follows:
"Hi
Billy,
Thanks
for bouncing that on. I have the following comments/suggestions.
1)
We should delete the reference to "facilitator". It is
enough that James is an attorney. In paragraph 1, I would suggest

that we add a brief sentence describing the allegations. (Just to
highlight the fact that the questions
asked
by Ngcuka had nothing whatsoever to do with them).
2)
In the second paragraph, James says that "it became evident that
there was a real interest on the part of the South African

authorities (including the National Intelligence Agency) with regard
to the contacts/business activities of Mr. Billy Rautenbach
in the
DRC...". I would suggest as follows:
-
I
think that its VERY important to say that the interest was not that
of the South African authorities- or the NSA
-
but
rather to suggest that the interest was that of Ngcuka himself. When
I discussed the matter with Jackie
-
he
said that Ngcuka was suspected of "abusing his office" ~-
(those are his words!) - He told me that they suspect that
he was in
fact controlled by Kroll, as well as by British intelligence. Maybe
James can say that he was surprised that the focus
of the questions
had absolutely nothing to do with the allegations that had been made.
Maybe James can suggest that such questions
were desperately out of
place. (Basically, Jackie thinks that Kroll and the Brits were using
what they knew of Ngcuka's role as
an informant during the apartheid
era to blackmail him and control him).
-
/ suggested to Jackie that the Ngcuka was interested not only ion the
DRC, but in Zim. (This plays on his suggestions that the
Brits were
behind all this). If he does have that impression, can James say that
Ngcuka was interest also in the Zims? (The letter
of 12 June does
refer to "foreign governments" - in the plural ~~ and not
just to a "foreign governments").
Was Bob ever mentioned,
for example?
3)
Maybe
James can note that there is no reference at all on the letter. (This
was picked-up by Jackie when I showed him the letter).
(As a passing
note - why is no fax-line visible on the letter?)
4)
I
am just wondering how we knew that Pete Richer and "Jeff' were
indeed from the NIA. Was it just that Ngcuka told us that?
That they
told us? Can we explain?
5)
Can
we just briefly describe the focus of the meeting in Mputo? i assume
that nothing at ail about the actual "allegations"
was
discussed and that the focus was ONLY the DRC and your relations with
foreign governments -­including Victor. What specific
questions
were asked of
you
at that meeting? Did Richer or "Jeff" explain why they were
interested in such matters?
6)
I
think we need a short explanation of who Victor was? ((Otherwise one
sort of wonders). Did they specifically ask for a meeting
with
Victor?
7)
Perhaps
we could add a short explanation that they never to our knowledge met
with Victor in Paris. (Otherwise, one is left wondering
if that
meeting ever happened?)
8)
Maybe
James can also build briefly on the fax that he received on 21
September from Richer saying that "negotiations [were]

discontinued'. Did the message come out of the blue? Was he
surprised? After all, he'd been fully cooperating. Can we say that
we
were left with the impression that the charges were trumped-up, and
an excuse to ask about your relations with the Governments
ofZim and
the DRC?
9)
Between
8 September and the fax of 21 September -­did James contact
Richer or Ngcuka?
10)
Anything further after the fax? Did James contact Richer, or Ngcuka
for that matter, to obtain an explanation for the abrupt
message?
My
final suggestion is that the memo be turned into an "affidavit"
~~ and that it be signed by James as a more formal
document. (Annexes
should be numbered, or rather lettered).
Best
regards,
James"
(Sic)
106.
In August 2005, whilst on patrol duties, Shlugman was informed over
the police radio of an armed robbery in progress. He and
his crew
proceeded to the scene of the robbery, which was a residential
complex known as West Ferry in School Road, Morningside.
On arrival
the hijackers had already left the scene. Shlugman, together with his
crew, sat at a table with their backs to the front
door and commenced
doing the necessary paperwork. Whilst so doing a man and a woman
entered the apartment. The man was talking
on his cellular phone. He
tapped Shlugman on the shoulder and informed him that the
commissioner would like to speak to him. Shlugman
was
taken
aback. He asked which commissioner and was informed it was the
National Commissioner. Shlugman introduced himself and recognised
the
accused's voice. The accused asked for a rundown on what had
occurred. Shlugman briefed the accused who told Shlugman that
"He
is a good friend of mine, you must look after him."
Thereafter
Agliotti introduced himself to Shlugman. Agliotti testified that he
had made the call to the accused on his return from
dinner.
107.
About 3 weeks later, at approximately 21h50 on a Sunday night,
Shlugman received a telephone call from Agliotti. He stated
that
there was a problem at West Ferry and that he cannot get hold of
Jackie Seiebi as his cellular phone was on voice mail. Shlugman

referred Agliotti to the Sandton SAPS.
108.
On 26 September 2005 Kebble was killed. It emerged that Agliotti is
charged with the murder of Kebble. He testified that he
had been at
the scene where Kebble had been shot. The trial is pending.
109.
It was put to Agliotti in cross examination that:
109.1
Kebble was in fact not murdered but that his
shooting
and death constituted an assisted
suicide.
109.2
Agliotti
was not involved in the planning or the execution of the shooting of
Kebbie.
109.3
The
person who shot Kebbie was in a motor vehicle in which three people
were conveyed, namely the driver of the motor vehicle, the
shooter
and a passenger and that SAPS were aware of the identity of them all
as well as of the role played by Nassif in the shooting.
109.4
Nassif
had engaged and paid the aforesaid three men.
109.5
SAPS
had been on the verge of arresting the three men and Nassif when the
DSO stepped in and offered section 204 indemnities to
the men and
informed SAPS that they had taken over the investigation. Agliotti
accepted all that was put to him.
109.6
The
only person facing criminal charges arising from Kebble's death is
Agliotti and that his trial for the murder of Kebbie is constantly

being postponed. Counsel for the accused added that the impression is
created that a sword is being kept over Agloitti's head so
as to
force him to testify against the accused.
109.7
Nassif
used two of the men that were involved in the Kebbie shooting in the
shooting of Mr Steven Miidenhall ("Miidenhall").
He was the
chief executive officer of Allan Gray Investments in South Africa.
109.8
Kebble had problems with Miidenhall hence his shooting. None of the
people involved in the Miidenhall shooting were prosecuted.
110.
Agliotti agreed with all that was put to him. It is not apparent how
Agliotti would have personal knowledge of much that was
put to him.
No other witness gave evidence in this regard.
111.
Leask testified in cross examination that the DSO was investigating
the Kebble killing and offences relating to the Kebbles.
He added
that on his case Agliotti and Stratton were the brains behind the
syndicate. According to Leask, Agliotti and Stratton
will stand trial
in respect of the Miidenhall shooting.
112.
Roeland carried out a cellular phone analysis as part of the
investigation into Kebble's death. She found that Kebble and Agliotti

had 7 telephone calls on the night before Kebble's death. At the time
of these calls Kebble was located at the place where he was
shot the
next night. The calls occurred at approximately the same time as
Kebble
was shot the next night. During
November 2005 Roeland reported on the outcome of her investigation to
her superiors and she accompanied
them to the accused where a
presentation was done, in addition to the accused Commissioners
Schutte, Williams and de Beer and Director
Ras were present. After
the presentation a discussion ensued about the possibility that
Kebble had had a third cellular phone that
had been stolen at scene
of the shooting. In this regard the name of one Erasmus, a police
reservist, who arrived at the scene
of the shooting, was mentioned.
According to Roeland after the name Erasmus was mentioned, the
accused made a call on his cellular
phone. She heard the accused say
"Hullo
Glen, what is the story you told me about the reservist."
After
the call ended Roeland asked the accused if the call had been to
Agliotti. The accused ignored her. She then asked the accused
if he
had a telephone number for Agliotti. The accused responded that he
did not know numbers. The reason why Roeland required
the number was
that on the day Kebble was shot none of Agliotti's cellular phones
were active. Roeland had hoped to get another
active number. After
the meeting the strange answer by the accused was discussed by
Roeland, Schutte and Ras. In cross examination
it was put to Roeland
that the accused had no recollection of phoning Agliotti in respect
of the reservist
("reservis
stone").
It
was subsequently put that the accused denied that he had phoned
Agliotti to find out about any reservist situation. She replied

in respect of both that the conversation occurred. As far as the
meeting is concerned it was put to Roeiand in cross examination
that
all that the accused can remember of the meeting was that he was very
angry with the investigating team because the police
had apparently
agreed to a third party removing Kebble's motor vehicle from the
scene. She denied that the accused was very angry
at the meeting.
Reference will be made to the accused's evidence in cross examination
in this regard later.
113.
In approximately October to December 2005 the accused called
Agliotti and arranged to see him at Maverick's offices. When
the
accused arrived, so Agliotti testified, the accused had a thick
document with him which was opened on a particular p and there
were
two lines underlined on the p. Agliotti read the two lines. According
to him the content of what he had read was to the effect
that Jurgen
Kogl reports that the Kebbles are paying the accused. The accused
asked if Agliotti knew the person mentioned. Agliotti
did not know
who Kogl was. He undertook to attempt to ascertain who he was. The
accused informed Agliotti that the document was
an intelligence
report and that it went to the President.
114.
Agliotti
asked Stratton and the Kebbles as to the identity of Kogl. They told
him that Kogl had entered into a business venture
with them that had
gone sour. Agliotti subsequently informed the accused hereof. The
accused was upset and said he would get an
apology from the author of
the document. Agliotti referred to this report as the NIA report as
that is what he perceived it to
be.
115.
Kogl
testified that he is a director of African Renaissance Holdings Ltd.
The company was incorporated in March 1994 and was created
in the
context of black economic empowerment. In 2005 and 2006 African
Renaissance Holdings Ltd investigated the possibility of
rescuing JCI
from its financial difficulties. Kogl conducted a due diligence
investigation into the affairs of JCI. He became aware
of persistent
allegations of money flowing out of the JCI group of companies to the
accused. As a result of this information
he consulted senior
counsel and was advised that, regard being had to the provisions of
the CA, he was obliged to report that which
he had heard,
notwithstanding the fact that it was no more than allegations.
Pursuant hereto he informed the then President of
South Africa,
President
Mbeki and the then Minister of Justice Mr Maduna.
116.
Leask testified that he was informed of a report to which Agliotti
referred to as the NIA report. Leask testified that his
understanding
was that it was a report by the National Intelligence Agency. In one
of the report backs to Pikoli and his executive
committee, Pikoli
undertook to make enquiries. In a subsequent meeting Pikoli
informed Leask that the correct name for the
report is a National
Intelligence Estimate ("NiE") which is a document in the
custody of the National Intelligence
Coordinating Committee
("NICOC"). He consulted with Gilder who was the then
retired coordinator of that committee.
Leask established the
existence of such a report.
117.
Pikoli confirmed in his evidence that during the BG investigation
there was feedback about a NIA report which had been mentioned
in
Agliotti's statement. Pikoli investigated this issue. The effect of
his evidence is that he attended on Gilder. Gilder showed
Pikoli a
report that had been submitted by the NIA to NICOC which made
reference to Kogl stating that the accused was paid or was
in receipt
of money from the Kebbles. This information was
not
contained in the final N!E as there was objection to its inclusion.
118.
In his evidence Gilder confirmed that he was coordinator for
intelligence from March 2005 to October 2007. The post is created
in
the National Strategic Intelligence Act and he was appointed to his
post by the President of the country. One of Gilder's
responsibilities
was to chair NICOC. NICOC produced a range of
intelligence assessments for government. Its main product was an
annual national
intelligence estimate. This estimate is referred to
as the NIE. The NIE is drawn from the intelligence received from the
4 statutory
intelligence services of the government as well as from
open sources. It is prepared normally towards the end of a calendar
year
and is normally presented to the President and cabinet either at
the end of the year or early the next year.
119.
The preparation process of the NIE commences during the middle of the
year. At some stage in its preparation the draft NIE
would be
presented to a task team consisting of the NICOC staff as well as
representatives of the 4 statutory intelligence services
and it would
then go through various stages of drafting and redrafting. The final
NIE report would have the same appearance as
the draft report.
120.
Gilder testified that he was visited by Pikoli. Pikoli referred to a
draft NIE in which there had been a reference to the accused.
Gilder
made a copy of the relevant draft NIE available to Pikoli.
121
According to Gilder, prior to a NICOC meeting to consider a draft
NIE, the draft would be distributed 3 to 4 days before the
meeting,
in hard copy form to the participants of the meeting. The reference
to the accused was not taken up in the final NIE.
A NICOC meeting was
held in approximately October 2005. At the meeting it was agreed that
the passage referring to the accused
be removed from the draft NIE.
Gilder testified that Lalla was present at the meeting. In cross
examination, Gilder testified that
the accused would not have been a
recipient of the draft NIE. It was also agreed at the meeting that a
letter of apology be written
to the accused for the inclusion of his
name in that context in the particular draft. Gilder testified that
as far as he could
remember such a letter of apology was in fact
written to the accused.
122.
Gilder was shown Exhibit G. He confirmed that its contents formed
part of the draft NIE. On the last p thereof there is a note
that
reads
"This
document is subject to the Protection
of
Information Act, Act 84 of 1982"
and
that it should be destroyed after use. In the case of the draft NIE
in this matter, the normal practice was for the draft to
be brought
to the NICOC meeting for discussion. At the end of the meeting the
draft reports would be collected and then destroyed.
The
following appears at the foot of p 6 of the NIE, p2 of exhibit G:
"Very
little
intelligence has come to light on the matter. Intelligence indicates
that individuals sympathising with Mr Zuma, namely Jurgen
Kogl, a
businessman, and Maurice Brugee, an alleged French intelligence
agent, are seeking to discredit the President. It was partly

triggered by the DSO having targeted Kogl. The latter is gathering
information on supposed illegal activities of SAPS National

Commissioner"
The
following appears on the top of p 7 of the NIE, p 3 of exhibit G"
"Jackie
Selebi. He claims that the National Commissioner received large sums
of money from the Kebbles emanating from questionable
business deals
concluded on his behalf.
123.
The accused denied in his evidence in chief that he had ever been in
possession of the relevant draft NIE. He did confirm that
he received
a letter of apology from Gilder.
The
letter of apology did not identify the reason for the apology. The
accused admitted that he had asked Agliotti for information
in regard
to Kogl. He did so he said because he knew, independently from
Agliotti, that Kogl was involved with Maverick. The accused
stated
that when he sought this information from Agliotti it was one of
those rare occasions where Agliotti was unable
to respond
immediately and said that he would revert to him. When he made the
enquiry, the accused testified that he had a
document in his
possession. He described the document as one relating to pedlars of
information. The next morning, whilst still
giving evidence in chief,
the accused introduced exhibit H2 into evidence. He testified that
this was the type of document that
he would have shown Agliotti when
asking him about Kogl. Exhibit H2 is marked secret. Paragraph 2 on p
1 thereof reads as follows:
"1.
Introduction
In
all the discussions we have had about this matter over the past two
years or so, I have been trying to indicate to you that much
more
resources (especially human capital) will be needed to sustain any
such investigations, The only resources that I have at
my disposal
are within the Agent Program and are quite limited. If the
National
Security Council is
as
concerned
about the threat posed by such activities, and if we are to
contribute meaningfully to any joint investigation with the
rest of
the intelligence community, then we should on our side, seriously
look into such issues that I have already canvassed with
you.
As
I have indicated to you, I am also reluctant to bring CIG and
especially CIMC on board, firstly because we have
established
that some of the personnel have sympathies towards the
protagonists but secondly, because of the suspicious link with
hostile Foreign
Intelligence personnel. As I have informed you on
previous occasions, we have been able to establish from our own
sources as well
as "walk ins", that there are indeed
persons who are involved in malicious information peddling, with a
declared purpose
of undermining Government and the
constitutional dispensation in general. The greatest concern
however, is their
apparent ability to influence key people in key
government
positions
to perpetuate their aims as much as their apparent link to foreign
forces of hostile intent.
2.
Information
Peddlers
As
you have suggested, I have met with operatives from NIA and agreed
that we should pull our resources together. On comparing our
note
thus far-we have uncovered that:
A
certain Jurgen KOGL is coordinating efforts to discredit the Head of
state. According to the source, KOGL (profile unavailable)
is looking
for assistance to gather intelligence to "sink MBEKI". In
his attempt, he is reportedly "hatching"
a conspiracy to
smear individuals he perceives to be close to President Thabo
MBEKI. Intelligence gleaned thus far
reveals that he has
already targeted Bulelani NGCUKA..."
The
paragraph continues as follows on p 2 thereof:
"...for
allegedly fathering a child to an under-aged mother. Intelligence had
also gathered, that information peddlers working
at the behest of the
Kebbles, have deliberately planted information, designed to embarrass
the NDPP.
KOGL
is also reported to be have targeted Jackie SELEBI (National
Commissioner of SAPS), with a corruption or bribery smear. According

to a well placed source, his aim is to get whatever fabrication
through to the media. KOGL is reported to be closely linked to
one
Paul O Sullivan (former security chief of ACSA- full profile not
available). Further investigation is recommended In another
arena,
Emile VAN DER MERWE (self styled private investigator) is reported to
be used by personnel of the Scorpions' GAUTENG office
to peddle
information to the media about suspects under their investigations.
Surveillance has been activated to monitor
a suspect address in
GRANT Avenue-NORWOOD. Further investigation is recommended.
3.
Manipulation
and abuse of office for
improper
motives"
124.
The
dispute on the evidence in this regard will have to be resolved later
in this judgment.
125.
A
commission was appointed to consider whether the DSO should continue
its independent existence or whether it should be incorporated
within
the SAPS. The commission was presided over by Justice Khampepe and is
referred to as the Khampepe commission. The accused
testified that he
was opposed to the existence of the DSO as a separate entity and that
he made his opposition known from the creation
of the DSO. He added
that SAPS had made submissions to the Khampepe commission in line
with his opposition to its existence.
126.
In this regard the accused testified of a meeting that he attended
where Ngcuka "was
sitting
there gloating about this new organisation".
He
asked Ngcuka if the DSO was being set up to do all these
investigations what would there be left for the SAPS to do. Ngcuka,

according to the accused, responded by saying that the accused is
opposed to the establishment of the DSO. The accused then said
that
he was opposed thereto and had always been opposed thereto.
127.
The accused's opposition to the DSO grew as time went by. He was
concerned that recruits were taken from university and sent
to the
United States of America to be trained by the FBI. He asked the
rhetorical question how many of these recruits come back
as double
agents. If these recruits were then sent to do a three month course
in the United Kingdom, how many come back as MI6
agents. His biggest
concern however was what he described as the DSO's alleged
"illegal
collection of intelligence and sharing of intelligence with foreign
intelligence agencies".
Still
later he became aware that members of the DSO were allegedly
misappropriating state funds. The DSO had access to a secret
fund
known as the
"C-fund\
The
accused alleged that these funds were misappropriated. The accused
testified that he received letters and facsimile transmissions
in
this regard. One of these, an anonymous letter, was handed in by the
accused as exhibit H1. It is addressed to the President,
two cabinet
ministers and the accused. The accused caused an investigation to be
launched in regard to the C-fund. He stated that
pursuant thereto Mr
Hans Meiring, who was the head of commercial crimes detectives,
wrote a letter to the controller of the
C-fund, MrKasper Jonker,
requesting information and documentation in regard to the C-fund. The
response hereto was that the SAPS
investigators must attend at the
DSO's offices where they could examine the documents. The accused
added in this regard that a
massive discussion took place within SAPS
as to whether they were prepared to go to the DSO's offices.
According to the accused
the DSO's response was a smokescreen to make
sure that the investigation did not continue. Why the SAPS could not
go to the DSO's
offices is unclear.
128.
Reverting to the Khampepe commission, Mrwebi testified that the
establishment of the commission caused a great deal of panic
within
the DSO and especially amongst the senior members of the DSO. The
commission was to receive submissions from the national
management of
the DSO and from two regions within the DSO, namely Kwa Zulu Natal
and Gauteng. McCarthy, who was at that time the
head of the DSO,
informed Mrwebi that his regional submission must be in line with the
DSO's national submission. He required Mrwebi
to submit a copy of the
Kwa Zulu Natal submission to him to enable him to verify that it was
in line with the national submission.
In addition McCarthy instructed
Mrwebi to ensure the arrest of as many policemen as possible so as to
make as big an impact as
possible before the national management of
the DSO makes their submissions to the commission.
129.
The
Khampepe commission completed its report at the end of 2005. The
finding of the commission was in favour of the continued existence
of
the DSO and a mechanism was provided for the DSO and the SAPS to
cooperate with each other. Certain guidelines in this regard
were
set out.
130.
It
was suggested to Pikoli in cross examination that there was a dispute
between the DSO and SAPS relating to the integration of
the DSO into
SAPS. Pikoli denied this. He stated that the Khampepe Commission
related to the mandate and location of the DSO and
not its
integration. Flowing from this dispute it was put to Pikoli that the
DSO was involved with foreign intelligence through
an entity known as
Kroll and Associates. Pikoli denied the alleged involvement and added
as far as Kroll and Associates is concerned
that it provided
organised security training for security departments including SAPS,
the NIA and the prosecutors. As part of the
foreign intelligence
involvement is concerned, Pikoli was asked if he knew Ms Robin Plitt
("Plitt"). He stated that she
was an employee of the DSO
who left whilst he was still in office. She left for the US. Counsel
for the accused then asked Pikoli
'Was
she
not a
member
of the FBI".
Pikoli
responded that he did not know that. Mr Paul O'Sullivan
("O'Sullivan") was then raised. Pikoli replied that from

newspaper reports it appeared that he was now living in the UK. As
far as the investigation into the accused is concerned he told
the
investigating team that he did not want the investigation tainted by
O'Sullivan's involvement. O'Sullivan had been involved
in the Paparas
arrests. Pikoli testified that he had heard about the O'Sullivan
dossier but had not seen it.
131.
As far as Plitt is concerned, Leask testified that she initially was
an investigator attached to the investigative directorate
of the
organized crime unit in the Western Cape and formed part of the team
that dealt with urban terrorism. She was subsequently
appointed as an
investigator in the DSO. She is a South African citizen currently
living in the USA with her husband. Plitt married
an American
policeman and she is living with him in the USA.
132.
It was put to Pikoli in cross examination that towards the end of
2005, maybe the beginning of 2006, the accused called him
to his
office and raised with him the concern that Ngcuka had tried to bribe
Rautenbach, Pikoli's wife had received a substantial
donation from
the Kebbles and the DSO's involvement with foreign intelligence
agencies.
Pikoli
denied that this was raised with him by the accused. The Rautenbach
issue, Pikoli stated was raised by the accused in the
context of the
accused asking him why the NPA were not dropping charges against
Rautenbach as he was in possession of a letter
which could embarrass
Ngcuka. This was raised by the accused much earlier in the year.
133.
Towards the end of January 2006, Pikoli received a letter from the
Director of Public Prosecutions for Gauteng. The letter
and the
annexure thereto is exhibit A 29. The letter according to its
reference was written in regard to
"Assistance
with investigation into the murder of Kebble".
The
annexure to the letter was described by Leask as a source document.
According to Pikoli the Director for Public prosecutions
for Gauteng,
Advocate de Beer requested a meeting with him. The meeting was held
towards the end of January 2006. Advocate de Beer
was accompanied at
the meeting by Advocate Robbertze. Advocate de Beer expressed
dissatisfaction with the SAPS team investigating
the Kebble murder
and the conduct of the accused. As to the former she stated that
their was a reluctance by the investigating
team to obtain cellular
phone billings from the service providers of certain cellular phone
numbers relating to Agliotti, Nassif
and the accused relating to
calls made on
the
day before and on the day of the death of Kebbie. Pikoli added that
the records referred to are only kept for a limited period
of time.
As to the latter she stated that one of the police officers had
reported to her that at a meeting the accused had telephoned

Agliotti. She requested that Pikoli authorise the involvement of the
DSO in the investigation. Leask confirmed that the investigation

commenced in response to the request contained in A 29. it must be
emphasised that assistance was sought in an investigation into
the
murder of Kebble.
134.
It was put to Pikoli that when he received the letter of 24 January
2006 from Advocate de Beer with its attachment, he was
only aware of
two complaints against the accused as mentioned in the annexure.
First that Nassif paid the accused R50000 every
month for work or
favours done. Second that the accused and the Kebbles were involved
in fraud. It was put to Pikoli that these
complaints were both
untrue. Pikoli accepted this and added that he never put these
allegations to the accused either. It was further
put to Pikoli that
once he had Stemmet's (around March 2006) and Nassifs affidavit
(November 2006) he knew that the allegations
made against the accused
in the annexure to the letter were untrue. Pikoli responded by saying
that it
was
an ongoing investigation. Some allegations would be thrown out and
others would be proven true.
135.
According
to Leask the first development in the investigation occurred in March
2006 when Stemmet provided the DSO with an affidavit.
In the
affidavit Stemmet implicated Agliotti in the Kya Sands incident and
made reference to a relationship between Agliotti and
the accused.
Leask testified that the Stemmet affidavit was used in support of the
application for authorisation of the investigation
which was required
in terms of the founding act and was in fact attached to the
application.
136.
According
to both the accused and Agliotti after the Kebble murder and from
approximately February 2006 a media campaign was launched
against
Agliotti and the accused. The campaign related inter alia to their
relationship. After the commencement of the media campaign
the
accused was convinced that Agliotti's phone was being tapped or
monitored. Agliotti purchased a pay as you go mobile phone.
He would
call the accused's driver and he would then arrange to meet the
accused.
137.
In
March 2006 Pikoli had sight of the affidavit deposed to by Stemmet.
Based on the content of this affidavit he
authorised
the investigation by the DSO apparently into inter aha the accused.
Pikoli informed the Minister of Justice and, after
that, the
President, of the authorisation of the investigation.
138.
On
26 April 2006 Leask attended a meeting in the early evening which
went on till the late hours of the night. At the meeting Leask
was
introduced to O' Sullivan and Mr Anthony Dormehl ("Dormehl"),
Dormehl furnished Leask with information relating to
a consignment of
hashish half of which was still in his possession, Dormehl implicated
Mr Paparas senior and his son, Mr Stephanos
Paparas. He also
incriminated Agliotti and a person known as Bob the American. As
Dormehl was incriminating himself, Leask informed
him that he could
offer him the benefits of s 204 of the CPA provided he cooperated
fully and handed over the hashish in his possession.
139.
During
the meeting Leask took objection to the manner in which O'Sullivan
wished to control the further investigation of the matter.
He excused
everyone else from the meeting except O'Sullivan. He informed
O'Sullivan that he never had a private individual advise
htm or
instruct him in regard to an investigation and that whilst
information from O'Sullivan was welcome he should understand
the
nature
of
his invoivement. According to Leask, O'Sullivan played no further
role in the investigation or in the investigation against the

accused.
140.
Leask
testified that following a covert operation, on 5 July 2006 arrests
were carried out on Paparas senior, Mr Poonin, Mr Marques,
Mr Albas
and a Mr Curtis. Mr Curtis was the person referred to as Bob the
American. Paparas handed himself over to the SAPS later
and was
subsequently added to the case. According to Agliotti he was on
holiday in Los Angeles when the arrests were effected.
Paparas junior
advised him of the arrests. It emerged that Paparas was married to a
cousin of Agliotti.
141.
Curtis,
Marques and Albas pleaded guilty to dealing in drugs. In addition
they provided the SAPS with information that implicated
Paparas
senior and junior, Poonin and Agliotti. At this stage the focus of
the investigation was on Agliotti. The trial of Paparas
senior and
junior and Poonin is presently part-heard in the Germiston Regional
Court. Agliotti and Nassif subsequently pleaded
guilty to their part
in the drug shipment. Leask testified that Agliotti pleaded guilty in
accordance with the role that he played
in the Paparas matter. Leask
added that Stephanos Paparas played the main role in the drug
shipment and that Agliotti
was
the person who moved containers and did so very effectively. He added
that Agliotti was not the king pin in the whole drug-dealing

transaction.
142.
de Beer testified that on Saturday 15 July 2006 she was at the Vaal
dam with her family. Whilst there she received a telephone
call in
the morning from a journalist. The journalist informed her that she
had certain documents in her possession and that she
wanted to
interview the accused in connection therewith, de Beer contacted the
accused. The upshot to this was that it was agreed
that the
journalist would make the documents available to the accused, where
after an interview between the journalist and the
accused would take
place. The documents were obtained and delivered to the accused and
de Beer attended the interview by the journalist,
who was accompanied
by a colleague, and the accused. A number of high ranking police
officers attended the interview as well. Included
amongst there
number was Deputy National Commissioner Pruis ("Pruis").
The following day a front p lead article appeared
in the Sunday
Independent newspaper, de Beer testified that she checked the article
for accuracy and found it to be an accurate
reflection of the
discussion that had taken place. She identified exhibit H8 as the
newspaper article in question.
143.
In the newspaper article it is stated the accused said during the
interview that he knew who had circulated the documents
that had come
into possession of the media during the week. Director Bokaba, who
was present at the interview, added that he had
spoken to the alleged
source who had informed him that he had handed a thick dossier
containing "a
list
of Selebi's involvement in all kinds of wrongdoing including his
links with Kebble and Agliotti"
to
the NPA. According to the article the allegations are contained in
two bundles of documents. The one bundle labelled
"strictly
private and confidential"
is
a summary of intelligence reports containing notes of interviews with
one
"CS
- a casual source".
The
second bundle
"consists
of affidavits made by Anthony Dormehl, under the pseudonym Bill
Smith. Attached to this is
a
damning
covering letter re the Assassination of Brett Kebble"
addressed
to the NPA. The article proceeds as follows:
"Dormehl
had made the affidavits pertaining to a cigarette-smuggling
syndicate, and the five men arrested in Alberton for the
alleged drug
smuggling of hashish and dagga to Canada, in an effort to obtain an
indemnity
from
prosecution.
He
makes no mention to Selebi in his affidavits, but does mention that
Agliotti was allegedly connected to one of the accused. It
is,
however, the covering letter that contains the
most
serious allegations against Selebi. Among these is that he received
R50 000 from Clinton Nassif, Kebble's former head of security
and the
man whose agent helped find a child kidnapped in Eldorado Park last
year: Selebi denied this.
It
is
also suggested in the first bundle of documents that Selebi owned a
close corporation called Universal Technical Enterprises
in Midrand,
but that he had other police fronting as the 'real' owners".
144.
The
covering letter referred to in the article appears to be the annexure
to the letter of 24 January 2006 which is referred to
in paragraph
133 above.
145.
According
to Agliotti he received a call in 2006 from the accused who said he
had to meet with him. They agreed to meet on a Saturday
afternoon in
the parking lot of the Makro store in Woodmead. On arrival Agliotti
parked his motor vehicle next to the accused's
vehicle and got into
the back of the accused's vehicle. The accused's driver, Andries, was
in the vehicle. The accused handed a
document to Agliotti.
146.
During
the course of the trial this document was referred to as the e-mail.
The document is exhibit A6. The document
consists
of two distinct parts. The first is entitled
"Statement
of Journaf
and
purports to be the statement of one
"Bill
Smith".
The
statement consists of four ps. The second is an e-mail communication
from O'Sullivan to Plitt. The e-mail communication consists
of four
ps. Each p of exhibit A6 bears a specific p number as part of a
sequence of eight ps which constitutes the entire document.
Agliotti
testified that he handed the document to Hodes and that this
numbering was effected by Hodes whilst Agliotti was in police

detention as will appear later herein. According to Agliotti when the
accused handed the document to him the e-mail communication
appeared
before the statement. Finally on the top of each p of exhibit A6 a
date and a time appears. In addition a
"from"
and
a "to" number appears. According to Hankel the "to"
number is the facsimile number of the accused. The
"from"
number
indicates a facsimile machine within the PABX system of the SAPS, but
located in a building other than Wachthuis. No issue
was made of the
date appearing on each p of exhibit A6, namely 20 July 2006.
147.
According to Agliotti he and the accused had a discussion about the
document that the accused had handed to him. The conversation
related
to the fact that he and the accused could discredit the Scorpions
because, as was
apparent
from the document, the Scorpions were using O'Sullivan in the
investigation. The accused said that Agliotti should read
the
document and give it to his advocate or legal team. Agliotti handed
the document to Mr M Hodes SC the father of Hodes. Hodes
senior
represented Paparas in the drug charge referred to above. At the time
exhibit A6 had been handed to him Agiiotti's name,
according to him,
had not come up in court in the Paparas matter.
148.
In cross examination it was put to Agliotti that he did have
discussions with the accused in eariy 2006 after the so-called
media
campaign had started. The discussions revolved around the issue as to
who was behind the media campaign. After some time
Agliotti and the
accused believed that O'Sullivan and the DSO were behind the media
campaign. It was further put to Agliotti that
the accused admitted
giving a document to Agliotti. As far as the accused could recall it
was an e-mail from which there was a
clear indication that O'Sullivan
and the DSO was behind the media campaign. The document which was
given to Agliotti was part of
the so called O'Sullivan dossier and
had been given to the accused by the press. The intention of the
accused in providing the
documentation to Agliotti, so it was put,
was to resist the improper and
unlawful
smear campaign against the accused and Agliotti in the media which
was based on untrue facts. This issue will be reverted
to later.
149.
Reference
must be had to the content of the statement of journal. It is
apparent from the evidence of Leask and the content of the
statement
that the statement was made by Dormehi. It appears from the
commencement of the statement that he had already deposed
to three
written statements. On the face of it the statement implicated
Agliotti in criminal activity. It appears from the statement
that it
was through Agliotti that the maker of the statement met Paparas and
that Bob, a Canadian man, (probably the same as Bob
the American),
brought large quantities of hashish into the country. When the maker
to the statement first met Bob, Paparas was
with him. Late in 2005 it
became apparent to the maker of the statement that Bob had some
involvement with Agliotti. Finally the
maker of the statement
indicates that Agliotti was guilty of some kind of fraud in regard to
tobacco. This issue will likewise
be reverted to later.
150.
Agliotti
was referred in his evidence in chief to the so-called UK reports. In
this regard Agliotti testified in chief that he received
a call
during, he thought, July or August 2006 from the accused to meet him
urgently. They met at Maverick. The accused passed
a document to him
which he glanced at fleetingly. The issue was not canvassed further
by reason of an objection to the evidence.
When the issue was raised
again the next morning, Agliotti, whilst still in chief, testified
that he had asked to look at his statement
in regard to the date on
which he was shown the UK report. He testified that according to the
statement he was shown the report
in 2005.
151.
Agliotti testified that what he could remember about the document
that the accused had showed him was that it bore a coat of
arms and
"either
HSM or Her Majesty's customs something to that effect".
What
he recalled reading from the document was that he and Nassif had
travelled to the UK and that he and his daughter had also
travelled
to the UK on a shopping trip. Furthermore that he had met with Billy
Ambrose and one Cahil. According to Agliotti the
accused asked him
whether he knew the persons mentioned in the document. He responded
that he did but that he was not concerned.
The accused stated that
Agliotti was being monitored by the UK authorities. Agliotti asked
the accused for a copy of the document.
The accused refused the
request.
152.
Agliotti testified that he discussed the report with Nassif as he and
Nassif had assisted Paparas in clearing a container for
which he was
arrested.
153.
In an endeavour to identify the report that Agliotti stated had been
shown to him, he was referred to exhibits A1 to A5. Exhibit
A1 bears
a coat of arms and has the words
"HM
Customs and Excise"
and
underneath that
"Law
Enforcement
printed
in bold type on the right top of the first p thereof. Exhibits A2 to
A5 each bear a coat of arms and have the words
"British
High Commission"
and
underneath that
"Pretoria"
printed
in bold type on the right top of the first ps thereof.
154.
Exhibit A1 reads as follows:
"The
above detailed operation is a new UK operation that
focuses
on the drug trafficking activities of:
Norbert
Glenn AGLIOTTI, DOB 22/11/1956 who is believed
to
be a South African National.
Background.
Information
from the UK indicates the AGLIOTTI and others are involved with the
trafficking of significant quantities of cocaine
to the United
Kingdom. The cocaine is
due
to be shipped by sea to the UK concealed within furniture.
AGLIOTTI
is associated with a South African business, Max bit which is linked
to an address; Unit 13 Gallager Place North, Richards
Drive, Midrand,
South Africa. AGLIOTTI is also associated with the following contact
points:
0027113153959
0027113155237 (fax) 0027832737070 (mobile)
Qlenn&maxbit,
co.za
AGLIOTTI
also controls secure lock up in a warehouse outside Johannesburg.
(Comment: It is not clear from the intelligence whether
the premises
identified above is the warehouse but it is strongly suspected that
it is.)
The
cocaine is transported by air from Venezuela to Angola, and then
transported by road to South Africa.
Unidentified
South Africans are responsible for the movement of the cocaine from
Venezuela to Johannesburg. However intelligence
suggests that it is
transported
by a Boeing 747 aircraft from Caracas to Angola, and then by truck,
during daylight hours to South Africa,
When
the cocaine is removed from the lock up (near Johannesburg) for
onward transportation, a Customs seal is placed on the container.
The
containers are shipped from Cape Town.
The
organisation intends to send three 'dirty' containers from South
Africa to the UK. Prior to this, three 'clean' containers will
be
despatched to act as cover, should one be called for examination.
A
dummy run took place on 18 June 2004 using the Johannesburg - Cape
Town - Tilbury, UK route.
Additional
information.
AGLIOTTI
is suspected of having close links within South African who assist
facilitation with his drug trafficking enterprises.
AGLIOTTI
is also associated with a UK based male known as 'Baldy John'.
'Baldy
John' is involved with the shipping of AGLIOTTI's cocaine from South
Africa to the UK.
'Baldy
John' is a white male, 32 years old with a midlands accent and is
linked with a clothes shop in Buckhurst Hill, London.
'Baldy
John' is associated with UK mobile telephone number +447876032558.
'Baldy
John's' father was also involved with drug trafficking.
AGLIOTTI
has considerable business contacts within the UK. These contacts will
be used to assist with moving forthcoming proceeds
from the UK to
Switzerland.
AGLIOTTI
visited the UK in early July possibly around 3 or 4 July 2004. He is
believed to have travelled with his daughter and stayed
at No1
Aldwych, London which is an exclusive hotel in Central London.
AGLIOTTI
is also associated with a UK national called Billy Ambrose.
Current
intelligence.
Most
recent intelligence indicates that AGLIOTTI and a male identified as
CLINTON NASSIF, DOB 28/10/1968, travelled together to
London on 23
July 2004 on South Africa flight number SA234.
They
have a booking to return to Johannesburg, 25 July 2004 on flight
SA235.
NASSIF
is associated with the following South African numbers:
0027828916327
(Mobile) 6803073
Whilst
in London, AGLIOTTI and NASSIF are scheduled to stay One Aldwych,
London which is an exclusive hotel in the centre of London
used
previously by AGLIOTTI.
Assistance
sought
The
UK have asked whether it would be possible to:
1.
Establish
whether AGLIOTTI and NASSIF are known to the South African
Authorities.
2.
To
check the South African movement control system to see whether any
additional travel for AGLIOTTI and NASSIF can be identified.
(Note:
We accept that if the two individuals are in fact SA nationals then
there details are not held on the movement control system)
3.
Whether
the addresses detailed are known to the South African Authorities and
whether they exist or not.
4.
Whether
the company said to be owned by AGLIOTTI exist and whether it has
ever exported any goods from South Africa to UK.
5.
Whether
telephone billing and reverse billing checks can be undertaken on all
the numbers detailed in the report to identify additional

international points of contact that AGLIOTTI has been in contact
with."
155.
In cross examination it was put to Agliotti that not one of the
exhibits A1 to A5 contains all the information that he testified
he
saw in the document shown to him by the accused. This was not
disputed by Agliotti. He added that he saw the document fleetingly.

It was put to Agliotti that
the
accused did show him some documents but not A1 to A5. He replied that
he was not able to dispute that.
156.
Hanke!
testified that he was and is the information manager of the SAPS
functioning within the Crime Intelligence Division. According
to him
that entails in theory that all intelligence generated throughout the
SAPS will eventually either cross his desk or those
of the centres
under his command at head office. He also has responsibility for
liaison on intelligence matters with foreign law
enforcement
agencies. According to Hankei the standard operating procedure when a
request is made for information by a foreign
law enforcement agency
is for the request to be forwarded to his office. The request is then
assimilated into the SAPS repository
of intelligence. The request is
then dealt with either in the intelligence centres or if it relates
to an existing operation by
the intelligence centre dealing with that
operation.
157.
Hankei
testified in respect of the so-called UK reports and in particular in
respect of exhibits A1 to A5 and exhibit D2. The reports
are all
directed by Mr Tony Tenger {"Tenger") to the SAPS. He
describes himself in each report as the
"UK
Drugs Liaison Officer".
Assistance
is sought from SAPS in regard to drug trafficking. In particular in
each of
the
reports information is sought in regard to Agliotti in respect of
drug trafficking. Exhibits A2 to A5 and D2 each bear the British
coat
of arms and the words
"British
High Commission Pretoria"
in
bold type on the right hand top side of the p on which the report
commences. Exhibit A1 is different. On the right hand top side
of the
p on which the report commences there is a logo of a crown on top of
bars similar to the bars on the window of a prison
ceil with chains
running down on either side of the bars. The words
"HM
Customs and Excise"
in
targe print appear on the right hand side of the p. The words
"Law
Enforcement
appear
there under in smaller print.
158.
Hankel identified exhibit A1 p1-3. The document was submitted to his
office on 3 August 2004 and dealt with by him on 4 August
2004. The
document which he described as a report emanated from the drug
liaison officer of Her Majesty's Customs and Excise, which
is a UK
law enforcement body, authorised to communicate intelligence matters
to Henkel's office. Hankel was aware that Agliotti,
who is identified
in Exhibit A1, had previously been drawn to SAPS attention as part of
an operation called Operation Chaser. The
report was booked out for
attention by the Special Operations Intelligence Centre. Preliminary
feedback was provided to the drug
liaison officer on 18 August 2004.
The telephone records of the telephone numbers referred to in exhibit
A1 were subpoenaed and
further feedback was provided with specific
communication records of foreign numbers that were dialled by
Agliotti. Hankei was
requested to make the data available to the
prosecuting authority. This information would have been contained in
the Operation
Chaser file. He then discovered that the file relating
to Operation Chaser had been booked out of his offices by a Captain M
Thema
("Thema") on 21 April 2006. It emerged from Hankel's
evidence that he summoned Thema and Director Lakalakala
("Lakalakala"),
who was Thema's commander at the time, in
about February 2009, and demanded the return of the file. They were
in no position to
explain what they had done with the file. Neither
Lakalakala nor Thema suggested that the file had been returned. On
the contrary
it emerged from Hankel's evidence that a few weeks after
the meeting with them, they sent Hankei a file container containing a
lot of scraps of paper. In cross examination Hankei added that had
the file been returned it would have been indexed back into his

environment and he would have expected Thema to have obtained a
receipt for the return of so important a file. In any event he

searched his archives and the file is not to be found.
159.
Hankel endeavoured to obtain the information that had been provided
in response to exhibit A1. Some information was obtained
from the
SAPS computers other information was obtained from MTN. The
information obtained from MTN Is contained in Exhibit D 1
to 57 and
reflects a record of telephone calls from 1 July 2004 to 20 August
2004 made to and from cellular telephone number 0832503333
which was
identified as Agiiotti's cellular phone. It is noteworthy that in
this period there were 16 calls made by the accused
to Agliotti and
41 calls made by Agliotti to the accused.
160.
Exhibits A2 and A3 are addressed to Nelson. He testified that he did
not recognise either report nor did he deal therewith.
Exhibits A2
and A3 are both not signed by the writer thereof and are dated 4
October 2004 and 23 December 2004 respectively. They
both bear a SAPS
date stamp of 21 February 2007. Nelson testified that he did not deal
with either A2 or A3. He further stated
in cross examination in
regard to exhibit A1, that once the information had been obtained and
a report compiled, the original of
exhibit A1 would be returned to
Hankel. The original request for assistance would not be retained in
the operational file.
161.
Exhibits
4 and 5 are addressed to Director, now Commissioner Els. Hankei
confirmed that these reports, although not properly addressed,
were
provided to his office and dealt with by his office. Els confirmed
this and added that a copy of the letter was sent to Superintendant

Fikter so that the information sought could be provided. Nelson
confirmed that he completed a report in respect of the request

contained in A4.
162.
Hankei
testified that he had been requested to identify all reports in his
environment pertaining to Agliotti. In this process he
found exhibit
D2. In cross examination Hankei testified that he is unable to
account for one copy of exhibit A1 and that was the
copy that was
placed in the Operation Chaser file which as appears above he no
longer has in his possession. It was put to Hankei
that the accused
denied that he ever had access to the UK reports.
163.
When
Leask commenced investigating the matter he approached Tenger at the
British High Commission and enquired from him if any reports
had been
communicated to the SAPS. Leask furnished Tenger with the information
he had received from Agliotti. Leask was subsequently
informed that
such reports existed and that arrangements had been made for the
reports to be made available with Lalla who was
at that time the head
of Crime Intelligence. Leask was subsequently furnished with 5
reports by Director van Vuuren who was the
head legal advisor for
Crime Intelligence.
164.
In cross examination the accused firstly denied that the Operation
Chaser file was missing. He labelled Hankel as a liar for
stating
that it was missing. He added that he would prevail on his counsel to
call Thema or Lekalakaia to testify. They would apparently
say that
the file was returned to Hankel's secretary. The accused further
accepted that exhibit A1 was booked out to Operation
Chaser and
worked on by at least Thema. It then emerged that the accused had
consulted with Thema after Hankel had testified, When
asked how he
could consult with a state witness, the accused responded that he was
unaware that Thema was a state witness. His
attention was then drawn
to portion of the cross examination of Hankel from which it is
manifest that Thema is a state witness.
Finally in this regard it
should be pointed out that neither Thema nor Lekalakaia were called
to testify on behalf of the accused.
165.
In September 2006 a search and seizure operation was carried out by
the DSO at Agiiotti's home and Maverick's premises.
166.
According to Leask, Nassif and Agliotti were two of the people being
specifically investigated in regard to the Kebble shooting,
in this
process an undetected incident was established in regard to a fraud
in which Nassif was implicated. The DSO could not trace
a police
docket. They reconstructed a docket and on 26 October 2006 Nassif was
arrested on a charge of fraud. Adv B Roux SC ("Roux")
was
Nassifs counsel. He approached the DSO and indicated that Nassif
wished to provide certain information. Roux provided a draft

affidavit. Leask took the affidavit to the prosecutors and the
National Director of Public Prosecutions and his executive committee

as Nassif indicated that he wanted the benefits of s 204 of the CPA
and wished to stipulate further conditions which were set out
in the
draft affidavit.
167.
According to Leask after a decision had been taken that the
conditions stipulated by Nassif could be complied with, Nassif
signed
the affidavit on 8 November 2006. In broad outline the affidavit
deals with the shooting of Miidenhall in Cape Town, secret
reports,
meetings with the accused, the relationship between the accused and
Agliotti, to some extent his own relationship with
the accused and
two bank
accounts
namely those conducted by Spring Lights and Misty Mountain.
168.
Pikoli
had sight of this affidavit. After reading the affidavit Pikoli
informed the Minister of Justice and thereafter the President
of the
contents of the affidavit and of the fact the accused's name kept on
cropping up in the investigation. Pikoli went as far
as showing the
President the affidavit deposed to by Nassif. The President read the
affidavit and suggested to Pikoli that he should
raise all the issues
with the accused. Pikoli phoned the accused and requested him to
attend a meeting with him. The meeting was
held according to Pikoii
on 11 November 2006 in Pikoli's office. The only persons present at
the meeting were the accused and Pikoli.
169.
Pikoli
asked the accused questions along the lines of that which was
contained in the affidavit deposed to by Nassif. Questions
were asked
in respect of the Spring Lights bank account, the Misty Mountains
bank account, the buying of clothes, the so-called
UK reports and
intercepted e-mails between Plitt and O'Sullivan. Questions were also
asked about the alleged covering up by the
police of an accident
involving a child.
170.
As
far as the receipt of payments was concerned, the accused denied that
he received any payments. Pikoli added that the accused's
denial was
very convincing. Pikoli was so convinced by the denial that he said
to the accused that he believed him when he said
that he did not
receive any money. Pikoli testified that he cried tears of relief and
that the accused cried as well. On other
issues Pikoli did not find
the accused as convincing. As far as the intercepted e-mails were
concerned, the accused admitted
that
"they
do have correspondence between Robin Plitt who was an investigator in
the DSO at the time and Paul O'Sullivan".
The
accused then went on a tirade against the DSO accusing the DSO,
according to Pikoli of all sorts of things. Pikoli elected to
ignore
these issues as they were not what he wished to achieve from the
meeting. The accused undertook to revert to Pikoli in respect
of the
UK reports and the covering up of the accident.
171.
The
following Monday the accused reverted to Pikoli and informed him that
a child had not been involved in the accident. The accused
did not
make any reference to the UK reports and Pikoli did not press him
further. The accused's version in respect hereof will
be set out
later.
172.
Pikoii
reported back to the President in respect of his meeting with the
accused. Pikoli indicated that there was the need for further

questioning of the accused and that in view of the seniority of the
accused that questioning would be undertaken by McCarthy. Pikoii

informed the accused of this decision. The accused was also informed
that the interview would be with prejudice and recorded. The
accused
was further informed that he was entitled to have a lawyer with him
at the interview. This was confirmed in a letter to
the accused.
173.
When
Pikoli was cross examined the issue of s 204 of the CPA was raised
with him. The thrust of this examination was aimed to establish
that
the desire to prosecute the accused overrode all else. Firstly in
regard to Stemmet, Stemmet gave the first affidavit to the

investigators. He made the statement in terms of s 204 of the CPA. It
was put to Pikoli, and accepted by him, that Stemmet admitted
in his
affidavit to the commission of very serious crimes. One of the crimes
admitted
to
was
the planting of a bomb at Microsoft in order to scare Microsoft into
increasing their security budget instead of reducing it.
Another of
the crimes was the planting of evidence in the fabrication of a case
against a person. Pikoii was taxed as to why Stemmet
was not
prosecuted in respect of the crimes. Pikoli's response
was
that the accused was aiso implicated by Stemmet and the prosecutors
indicated that they would use Stemmet as a witness. Secondly,
in
regard to Nassif he too entered into an arrangement with the
prosecutors. Nassif arranged for people to be shot. This included

Miidenhall the former chief executive officer of Allan Grey. It was
put to Pikoli in this regard
"Yes,
the arrangement is you get a 204, just come and say anything against
the accused not so, then we excuse you of these
attempted murders,
the murder of Kebble, etc, etc, not so?"
Pikoli
responded that when he looked at the case and discussed it with his
deputies from an objective and independent perspective
and had regard
to the high rate of crime in the country, he concluded that as South
Africans we could not afford to have a National
Commissioner of
Police who is alleged to be involved in the commission of serious
crime. He added that he regarded these allegations
against the
accused as being very critical and very serious. Pikoli stated that
this is why he had to raise the matter with the
President. He
concluded by saying that it is part of our law that in dealing with
organised crime you would need to use criminals
against criminals. It
was pointed out to Pikoli that Nassifs statement is based mainly on
what Agliotti told him and is thus hearsay.
Pikoli acknowledged this.
He added however that without the admissions made by Nassif, the
Kebble murder would not
have
been solved. It was put to Pikoli that he was so enthusiastic to get
any evidence against the accused that he was willing to
grant
exemptions and not proceed with the prosecution of Nassif on serious
crimes that were not related to the accused. Pikoli
responded that
the admissions made by Nassif did implicate the accused and that
there is nothing as bad for the country as to have
allegations that
the Commissioner of Police is in the pocket of organised crime.
Pikoli added that he would want to believe that
exemptions from
prosecution is not an abuse of the discretion which prosecutors have
as at the end of the day it is the court that
would grant immunity
not the prosecutors. When pressed further on the issue that the
person who shot Kebbie, the person who drove
the vehicle transporting
the shooter, the passenger in that vehicle and Nassif who paid them
were all not being prosecuted and
being asked who was there left to
prosecute, Pikoli responded that Agliotti and Stratton who were the
brains behind the shooting
were left to prosecute.
174.
Finally in regard to the s 204 exemptions when asked in cross
examination whether
it
was
necessary for all the exemptions to be granted, Pikoli indicated that
the decision was taken by the executive of the NPA. It
was a painful
decision. They felt that if the allegations made against the
accused
were supported by evidence regard being had to the nature of the
accused's office it was a risk or gamble worth taking.
The national
executive of the NPA consisted of Pikoli, his four national deputies
and his special advisor.
175.
Fouche
testified that Agliotti played golf at the Datnfern Country Club.
Fouche was approached towards the end of 2006 by one Pieterse,
who
was a member of the Scorpions, for information on his database
relating to Agliotti. He was asked by the Scorpions to assist
them in
placing a tracking device in Agiiotti's motor vehicle. He originally
agreed to assist but changed his mind. He informed
Pieterse
accordingly. He also told Agliotti about the request of the
Scorpions. Agliotti responded by saying the Scorpions were
trying to
get at the accused through him. About a week later Agliotti informed
Fouche that he had obtained advice to the effect
that he should
remove the tracking device and place it in an envelope.
176.
On
15 October 2006 the DSO applied for warrants for arrest in respect of
Agliotti and Stratton for the shooting of Kebbie.
177.
On
16 November 2006 Agliotti was arrested on a charge of the murder and
conspiracy to murder Kebbie. He was remanded in custody
in the
Sandton police station cells. From the time of his arrest he was
represented by Adv L Hodes and Mr R Kanarek.
178.
On
the day Agliotti was arrested, Pikoli and McCarthy flew to Cape Town
hoping to have a meeting with the Minister of Justice, the
Minister
of Safety and Security and the President. They met with the Minister
of Justice and the acting Minister of Safety and
Security, Mr N
Balfour. They were briefed on the arrest of Agliotti as well as the
events that led to the arrest. Pikoli and McCarthy
were unable to see
the President.
179.
As
had been intimated to the President, McCarthy interviewed the accused
towards the end of November 2006. McCarthy reported back
to Pikoli in
respect of the interview.
180.
According
to Agliotti whilst he was in custody he instructed his legal
representatives to prepare a bail application. He also instructed
his
legal representatives to endeavour to broker a deal for him with the
DSO. Whilst his bail application was in the process of
being
prepared, Agliotti was advised by his legal team to make notes of
people, important incidents and contacts. Agliotti did
so in his own
hand
writing. When making the notes Agliotti did not have access to
documents or computers, Agliotti identified the handwritten
notes as
the three ps of documents headed
"Annexure
C"
and which are contained in exhibit A21. Agliotti confirmed that the
three ps are in his hand writing as well as in the handwriting
of
Hodes. The following appears in Agliotti's hand writing on the first
p of exhibit
A21:
"Comms
-
Direct
Calling
Paper/Andries/Then
Put Line
-
Would
meet in Person/Not Much Said on Phons
Payments.
-
R
300 once
~R1
m
-30
Dinner INTERPOL
-
$
40 over few occasions
-
Suits,
Shoes, H/bags/Kids clothing
-
50
at a time 3 times
-
Always
at office /at airport/or Andries
-
Billy
Rautenbach/James Tidmarsh/Surtee Sema J.S/I
Pillay
Reports
1.
H.M.S.
2.
NIA.
3.
NPA"
181.
Leask
testified that he was approached by Agiiotti's counsel and informed
that they were going to apply for bail and that they would
provide an
affidavit giving certain information. The affidavit which was deposed
to on 7 December 2006 was not satisfactory and
Leask indicated that
the state would oppose the bail application.
182.
According
to Leask he was again approached by Agiiotti's counsel who had in his
possession handwritten notes that had been made
by Agliotti which
contained far-reaching information which they wished to provide. At
their request Leask accompanied Agiiotti's
legal representatives to
see Agliotti in the police cells. Leask told Agliotti that whatever
he wished to say he should reduce
to writing, in whatever form he was
advised, and should make specific mention of whatever corroboration
he had for his allegations.
Leask thereupon left. In due course Leask
was provided with an affidavit which was deposed to by Agliotti on 11
December 2006 and
which had several attachments. The affidavit was
written by Hodes. A copy of the hand written original together with
the annexures
thereto was handed in as exhibit A43. A typed version
thereof without the exhibits
thereto
was handed in as exhibit A32. The e-mail and the hand written notes
which were attached to the copy of the hand written
affidavit, were
handed in as separate exhibits. The e-mail is exhibit A6 and the hand
written notes is exhibit A21.
183.
Agliotti
was released on bail on 15 December 2006. Agliotti's trial on a
charge of the murder of Kebble has been postponed from
time to time
and is still pending in this court.
184.
A
meeting of the JCPS cluster was arranged for December 2006. There was
no quorum for the meeting. The accused invited Pikoli to
his office
saying there is something he wanted to show him. The accused showed
Pikoli 2 video recordings. Mphego was the interviewer
in both. In the
one Mphego interviewed Stemmet and another person whom Pikoli did not
know and in the other he interviewed Agliotti.
Stemmet was questioned
in regard to cigarette dealings in an attempt to establish that he
was involved in unlawful activities.
Agliotti was questioned about
monies that Agliotti had said had been paid over to the accused.
Pikoli recalled an amount of 1 million
or so. Agliotti denied in the
video having given any of the money to the accused. Pikoli added that
he thought that he was being
shown the videos so that
he
would come to the conclusion that if the NPA were relying on Stemmet
or Agliotti neither were reliable witnesses.
185.
It
appears that the DSO experienced difficulty in obtaining the SAPS
murder docket after the arrest of Agliotti. There was according
to
Pikoli at that stage already a bad relationship between the DSO and
SAPS. Pikoli approached the President for assistance in
obtaining the
Kebbie docket. The President phoned the accused's office. The accused
was in Cape Town but was returning that afternoon.
The President, who
was due to leave for Cape Town, delayed his departure. On his return
from Cape Town the accused came to the
President's office. In the
presence of the President, Pikoli requested the accused to make the
Kebbie docket available to the DSO.
The docket was subsequently
handed over to the DSO.
186.
On
11 March 2007 Pikoli met with the President, the Minister of Justice
and Ngcuka. After Ngcuka left the meeting Pikoli informed
the
President and the Minister of Justice of the problems encountered by
the DSO in gaining access to information in the so-called
BG
investigation. The DSO wanted access to the videos that had been
shown to Pikoli (and also McCarthy), the UK report and informants'
files.
In response to their request for documentation the DSO received a
letter from the State Attorney stating that if documentation
was
required the DSO must seek such documentation through his office. The
President suggested that a meeting be held between the
Minister of
Justice and the Minister of Safety and Security and Pikoli to sort
the matter out. The meeting was held at Luthuli
House. The upshot of
the meeting was that the Minister of Safety and Security undertook to
look into the matter and to revert to
Pikoli. During the same week
the Minister of Justice contacted Pikoli and requested him to attend
a meeting with her, the Minister
of Safety and Security and the
President. This meeting was held in Kempton Park. Prior to the
accused, who apparently was also
going to attend the meeting, and the
Minister of Safety and Security arriving at the meeting, Pikoli met
with the President. The
President enquired why Pikoli did not meet
with the accused. Pikoli responded that he was reluctant to have a
meeting with the
accused as he was a formal suspect. The President
responded, according to Pikoli, by saying that the idea of the
meeting was for
Pikoli to get the information that he required.
Pikoli then met with the two ministers and the accused. The accused
was uncooperative
and dismissive of Pikoli's request. He said that he
was in charge of security in the country and that the DSO was not
going to
get
any documents from him or his peopie. Pikoii informed the Ministers
that there was no point in continuing the meeting and he
left the
meeting.
187.
On
19 March 2007 Pikoli wrote a letter to the Minister of Justice
expressing the DSO's frustration in not obtaining the requisite

documentation. Pikoli subsequently received indications that the
information would be handed over. The indications proved to be

incorrect.
188.
On
7 May 2007 Pikoli wrote and caused to be hand delivered to the office
of the President a letter. In the letter Pikoli sought
the
intervention of the President in obtaining the documentation failing
which an application would be made to court for appropriate
relief.
On receipt of the letter the President called Pikoli and said the
letter did not give him much time. Pikoli responded that
he would not
proceed until the President had tried to resolve the matter. The
President said he would revert to Pikoli the next
day. The next day
the Minister of Justice phoned Pikoli and asked him to attend a
meeting with the Minister of Defence.
189.
On
8 May 2007 a meeting was held between Pikoli, the Minister of Justice
and the Minister of Defence. At the meeting they enquired
as to the
strength of the case
against
the accused. They also sought information as to the effect of s204 of
the CPA.
190.
The
next day Pikoli received a call from the office of the President
requiring him to meet the President and the accused at the
offices of
the crime intelligence gathering unit of SAPS on 9 May 2007.
191.
The
President attended the meeting. Pikoli attended the meeting together
with McCarthy. The accused attended the meeting with Mphego,
Lalla,
Williams and Tshabalala. At the end of the meeting a process was
agreed upon in terms whereof two teams led by McCarthy
and Lalla were
to ensure that the DSO received the documentation it sought.
192.
Mrwebi
testified as to a meeting of the DSO that was convened by Pikoli and
which took place on 5 June 2007. At the meeting Pikoli
stated that
the purpose of the meeting was to discuss the so-called Browse Mole
document. This document had apparently been compiled
by members of
the DSO and leaked to the press. The purpose of the meeting was to
ascertain how the document had come about. The
upshot of the meeting
was that Pikoli informed the meeting that the National Security
Council had instructed that an investigation
be held into
the
circumstances
surrounding the production of the Browse Mole document, its leakage,
the intentions of the compilers and any other
related matters. Pikoli
added that all present at the meeting should cooperate fully with the
proposed investigation. Mrwebi added
that in time he became aware
that a task team of the National Security Council had been set up to
investigate the matter.
193.
On
18 June 2007 the African National Congress held a policy conference.
One of the decisions taken at the conference was to disband
the DSO.
Mrwebi stated that this decision had still to be ratified at the
conference of the African National Congress which was
to be held in
Polokwane in December 2007.
194.
According
to Pikoli, during the course of the BG investigation, the
investigation team would report to Pikoli, McCarthy and Pikoli's

advisor Ms Kalyani Psllay. When difficulties were encountered with
SAPS failing to make documents available, Pikoli called in the

assistance of Mr Willie Hofmeyer. Hofmeyer is a national deputy
director of Public Prosecutions and is the head of the Asset
Forfeiture
unit. As the investigation progressed and matters were
coming to a head and because it was a matter of national importance,
Pikoli
decided to involve his national deputies.
The
investigating team started briefing the national deputies as well.
Pikoli identified the deputies as McCarthy, Ramaite, Hofmeyer
and
Pillay.
195.
On
25 June 2007 the investigating team gave a full briefing to the
Minister of Justice as to the status of the investigation.
196.
On
25 July 2007 a special management meeting of the DSO was called by
McCarthy in Pretoria. The purpose of the meeting, according
to
Mrwebi, was to consider strategies to ensure the continued existence
of the DSO in the light of the policy decision referred
to above and
the forthcoming conference of the African National Congress. What
occurred at the meeting appears from an affidavit
deposed to by
Mrwebi, which is exhibit H9, the truth of which was confirmed by
Mrwebi in his evidence. How this affidavit came
into existence will
be referred to later.
197.
According
to the affidavit both the lead prosecutor for the state and the lead
investigator of the investigation against the accused
were present at
the meeting. The chairperson of the meeting, McCarthy, outlined four
matters which he regarded as problematic for
the DSO. The four
matters were
"(a)
The Zuma matter (b) The Mac Maharaj matter © The Ramatlodi
matter (d) The Bad Guys matter (Agliotti/Kebble)".
McCarthy
indicated that he needed advice as to how these matters need to be
handled before the December conference of the African
National
Congress. In cross examination it emerged that there was a fifth case
that was discussed. It was referred to as Travelgate.
198.
A discussion took place at the meeting as to the continued existence
of the DSO. Suggestions were debated as to how the status
quo with
regard to the DSO could be maintained. These included:
"That
we must go back to the so called 'Hollywood Style' to show the
public that the DSO is still alive
We
must explore and undertake other publicity exercises to sell
ourselves to the public, government and business We identify
politicians who are favourable to the DSO and try to influence them
We
identify business executives who are favourable to the DSO and try
to influence them
That
a possible legal challenge may be considered in view of the
recommendations of the Khampepe Commission
That
all the above must happen before the ANC National Conference in
December 200T
199.
With
regard to the problematic cases there were, according to Mrwebi
divergent views. Some suggested that the matters must be dealt
with
as soon as possible, whilst others suggested that the outcome of the
Polokwane conference should be awaited. According to
Mrwebi
"both
options were seen to be problematic as the perceptions and
accusations of abuse of power will remain either way".
No
decision was taken in this regard.
200.
The
affidavit then proceeds to its conclusion from paragraph (e) thereof
as follows:
'(e)
From
the
discussions at the meeting it became clear that the members were
concerned about the autonomy of the DSO if the resolution to

co-locate them with SAPS were to become a reality, hence the
suggestions to influence the process in order to retain the status

quo. But it appeared that the urgency for the DSO lies in the type of
decision that had to be taken around the four problematic
cases, as I
gathered from the meeting that there was indeed a real feeling that
these cases were likely to influence the course
of direction and
position of the DSO.
79
(f)
With regard to the four problematic cases referred to above, I can,
from an insider perspective, give the following background

information:
>
As
said that the chairperson did not give any details as to why the said
four cases were problematic for the DSO but from various
discussions
at different levels the perception created of targeted investigations
and prosecution of high profile individuals would
arise.
>
The
Zuma matter has always been cited as a matter that directly
contributed to that perception.
>
However,
with regard to the Maharaj and Ramatlodi matters it was the first
time during this meeting that these were specifically
mentioned as
being problematic for the DSO, otherwise we just knew that there were
some investigations pertaining thereto.
>
With
regard to the Bad Guys (BG) matter we knew that the DSO was involved
in the investigations of any ordinary organized crime
matter, but
lately, before this meeting the following events are of note:
It
would be mentioned that that BG matter is very important for the DSO
and that it actually meant life and death for the DSO.
That
is even why the Regional Head of Gauteng, is himself designated as
the prosecutor in the matter.
Further
that is even why later the Investigating Director himself was further
designated to also conduct the prosecution in the
matter and that he
would not be attending any management meetings and he will be
full-time in the matter.
That
was indeed very strange to us
as
we
would not be told of the reason for the importance of this matter for
it to even require such high level intervention. To us
it was an
ordinary, albeit complicated organized crime matter, involving drugs,
murder, and serious economic crime related matters.
And it was no
different from other matters we used to handle. The question the
answer to which we had not been provided was and
is why is this
matter of such importance as to even pose a threat to the existence
of the DSO.
However,
from further inquiries, it became clear to me why the BG matter was
of such importance to the DSO.
As
no details were given about why the four matters were regarded as
problematic for the DSO and no reasons for a need for suggestions
and
decision thereon in the light of the ANC June
RESOLUTIONS
OF THE MEETING
The
meeting closed with the following resolutions, inter alia:
>
That
we embark on an aggressive campaign to market/publicize the DSO by
identifying certain identified cases for that purpose.
>
That
politicians favorable to the DSO be approached with a view to
influence them in order to ensure the status quo remains.
>
That
business executives (some were named by the chairperson) favorable to
the DSO be approached as well to similarly influence
them.
>
That
Top Management (Head Office management) of the DSO will deal with the
four problematic cases and take
a
decision
on how the matters will be approached."
Policy
conference and the upcoming ANC December National Conference were
given as well we were only left to speculate. However,
what was clear
from discussions was the urgency of taking decisions in these four
matters either way before the December ANC National
conference.
201.
The
last presentation that was made by the investigating team was made at
de Hoek over a period of 3 days being the last 3 days
in August 2007.
The NPA secured the services of Mr Cockrell a practicing counsel to
be of assistance in the matter and to test
the sufficiency of the
evidence that the DSO had against the accused at that time. According
to Leask the major decision that was
taken at de Hoek was that there
was a case for the accused to answer and that preparations must be
made for the necessary warrants.
202.
In
August 2007 Mrwebi received a telephone call from a person who
introduced himself as being from the office of the President.
This
person indicated that he was part of the task team investigating the
Browse Mole document. A meeting was arranged between
the task team
and Mrwebi in Durban. The task team consisted of Fraser from the NIA,
Lalla from the crime intelligence unit of SAPS,
and Mr Loyiso Jaffa
from the office of the President. At the meeting Mrwebi was informed
that from their investigations of the
origins and source of the
Browse Mole document, he or his office was implicated as the source
of the document.
Mrwebi
indicated that he would investigate the information the task team
had. He was then requested to be part of the investigation
team and
to assist with the investigation. After investigating the matter
Mrwebi presented the task team with a report dispelling
the
allegations directed against his office.
203.
Two to three weeks after submitting his report, according to Mrwebi
it must have been towards the end of August 2007 or the
beginning of
September 2007, he was contacted again by the task team. They now
wished to see him in connection with the meeting
of the DSO which had
occurred on 25 July 2007. He attended such a meeting. He did not have
the contemporaneous notes which he had
made at the meeting of 25 July
2007 with him at the meeting. After the meeting he consulted his
notes and at the request of the
task team prepared the affidavit
which is annexure H9. He regarded the affidavit as top secret as he
had been informed that the
investigation was a top secret
investigation. After he had deposed to the affidavit he handed it to
a NIA officer in Durban with
the request that it be handed over to
the relevant members of the investigating team.
204.
A
warrant for the arrest of the accused was applied for and issued by
the Chief Magistrate of Randburg on 10 September 2007.
205.
A
search warrant was applied for and issued by the Deputy Judge
President of this division on 14 September 2007.
206.
On
23 September 2007 Pikoli was suspended in his office by the former
President of South Africa, President Mbeki. This suspension
led to
the appointment of a commission of inquiry referred to as the Ginwala
Enquiry.
207.
On
27 September 2007 Leask was directed by the then Acting National
Director of Public Prosecutions, Mr Mpshe, to hand over the
original
warrant of arrest and search warrant to him. Leask ascertained that
the warrant of arrest was subsequently cancelled and
that an
application was brought for the cancellation of the search warrant
but such application was unsuccessful.
208.
Mpshe
appointed a review team to analyse the case against the accused as it
stood at that time. The review team commenced its task
in October
2007.
209.
Leask
testified that after Agiiotti's release on bail consultations took
place with him and his counsel and preparations were made
to draft an
affidavit. During 2007 the process was taken further in that Agliotti
went with the investigating team to Stellenbosch
for a week for the
purpose of finalising the affidavit. This was done with the consent
of Agiiotti's counsel. On their return the
affidavit was made
available to Agiiotti's counsel. Thereafter it was deposed to by
Agliotti on 21 November 2007. This affidavit
is exhibit A33.
210.
In
cross examination it was suggested to Leask that the process of
preparing this affidavit was long and laborious and that there
must
have been drafts of the affidavit. Leask responded that there were
logistical delays occasioned by the availability of Agiiotti's

counsel. No draft affidavits were prepared. One document was worked
on in digital form and this document was ultimately presented
to
Agiiotti's counsel for their approval. This method was adopted
because of the overlapping cases. There were changes to the document

in that the information contained therein was enhanced. Leask was
emphatic that there was no change in versions.
211.
On
28 November 2007 Agliotti pleaded guilty to dealing in drugs in the
Paparus matter. Prior thereto Agliotti and the state had
concluded a
plea bargain in terms of s 105A of CPA and the charge was disposed of
in that manner.
212.
in December 2008 the findings of the Ginwala Enquiry were made
public. The finding was that Pikoli was fit to hold the office
of the
national director of public prosecutions and his reinstatement to
office was recommended. Notwithstanding this finding President

Motlanthe determined to dismiss Pikoli from his office. Pikoli
thereupon instituted review proceedings in the High Court. The review

was to be heard shortly after Pikoli testified in this court.
213.
In late December 2007 the review committee that had been established
by Mpshe to determine whether the prosecution should proceed
made its
decision known. Although not expressly stated the decision must have
been to proceed with the prosecution.
214.
On 4 January 2008 Agliotti deposed to a further affidavit. This
affidavit is exhibit A23. It came into existence in the following

manner. Agliotti testified that during the period 2007/8 he was
befriended by Mrs Volskenk, whom he described as a business
colleague.
She claimed to have, according to Agliotti, a business
relationship with Mr Manzini who was the head of the NIA. Agliotti
had previously
discussed with Volskenk his complaints against the
NPA. Volskenk suggested that Agliotti meet with the NIA in order that
he gives
them his grievances. Agliotti agreed provided he would meet
with the highest person in the NIA.
215.
Agliotti received a call on 4 January 2008 to attend a meeting at an
office park in Rivonia. He did attend the meeting. Prior
thereto he
had partaken in a family luncheon. At the office park Agliotti was
met by Volskenk and Mr Dennis Kekana. Agliotti was
told he first
needed to make a statement as to how he was treated and that
thereafter the same evening he would meet with the NIA.
A statement
was duly produced. Agliotti dictated the contents thereof and
Volskenk typed the statement. Kekana then took Agliotti
and the
statement in his motor vehicle to the Balalaika Hotel in Sandton. In
the foyer of the hotel they were met by a NIA member
who took them to
a suite in the hotel. There Agliotti met Manzini and Fraser from the
NIA and Mphego. Agliotti testified that he
was surprised to see
Mphego at the meeting as the meeting was supposed to be with NIA.
Mphego summoned a police officer before
whom Agliotti took the oath
and signed the statement. The statement reflects that the oath was
taken in Brixton. This is wrong.
216.
Agliotti testified that at the time of making the affidavit he had
been in jail, he was under house arrest, his life had been
put on
hold, he and his family had been exposed to an armed robbery and he
had never been offered a deal such as Nassif and others
had been
offered by the DSO. He wanted somebody to hear his side of the story.
Volskenk had intimated that this may be possible
through the NIA.
Accordingly Agliotti determined to give the NIA a version that they
wanted to hear. He stated that he gave a version
in the affidavit of
Kebble's theory of what was going on with Ngcuka and McCarthy and
what he thought was in the accused's and
his interest as well as what
he thought the NIA wanted to hear. The paragraphs of the affidavit
were numbered and Agliotti was
taken to the content of the affidavit
from which it appeared that certain information had been given to him
by the DSO and the
NPA. Agliotti testified that the information had
not expressly been given to him. ft was his interpretation of the
facts.
217.
In paragraph 9 of the affidavit the following is stated:
"Their
intention was to prove a case of bribery and corruption against
Jackie Seiebi and others and in return I
would
receive indemnity in the following cases being number 1) to plead to
a 105 plea bargain agreement in the Papparus drug case
and 2) a 105
plea bargain agreement in the Bret Kebbie murder and 3) in the empire
K fraud case they would give me a 204 if I testified.
In return, I
had to testify against National Commissioner Jackie Selebi to case of
bribery, corruption, money laundering and defeating
the ends of
justice. I maintained to the DSO all along that I never bribed Selebi
at all and I was not going to testify."
In
paragraph 10 of the affidavit the following is stated:
"If
made a statement against Selebi, I would get a 204 indemnity and
could not be prosecuted for bribery and corruption against
Selebi,
and would receive a 204 indemnity against prosecution in the empire K
case, I was told that I could go to jail for at least
15 years and
therefore should make the necessary statements. It was made VERY
clear to me that the DSO along with the NPA were
"the law"
that governed the country as well as justice in South Africa. They
made it very clear that no other law enforcement
agency could dictate
to them or question their motives or actions."
Finally
Agliotti stated in paragraph 12 the following:
"On
numerous occasions, I requested an audience with Vusi Pikoii when I
was told by Gerrie Nel that this would not be possible
at all. My
request was to speak to Pikoli on the basis that he had no right
whatsoever to give 204 indemnities to Nassif, Smith,
McGuirck and
Schultz for the murder of Kebble as I had no part to play in this. I
was told that this would NEVER happen, however,
if I did a deal, I
could have an audience with Leonard McCarthy - head of the DSO at
which I stated that I had no desire whatsoever
to speak to Mr.
McCarthy. It is very clear to even a blind man that the DSO used
people such as Paul 0' Sullivan, Tamo Vink, and
various others to
attempt to bring down Selebi in order to save the DSO from being
incorporated back into the SAPS organisation.
It is VERY clear that
the DSO abused their office of power to achieve this goal."
218.
According
to the accused Agliotti's affidavit of 4 January 2008 was faxed to
the office of his lawyers. This must have been prior
to the accused's
application which is referred to hereinafter being launched. Later in
cross examination the accused stated that
the affidavit was received
on 5 January by fax at his counsel's chambers.
219.
According
to the accused he did not discuss the meeting at the Balalaika Hotel
at any stage with Mphego.The
accused
heard about the meeting approximately i week after the meeting. He
was told about it by Mr Manzini who was the Director
General of
National Intelligence.
220.
On
7 January 2008 a further meeting took place between Agliotti, Mphego,
a representative of the NIA and a few other people whom
Agliotti
could not identify.
221.
This
meeting was held at the Villa Via hotel in Sandton. Agliotti was
taken to the meeting by Kekana. A video recording was made
of the
meeting. According to Agliotti he made it abundantly clear to Mphego
that the meeting was to be conducted off the record
as he wished to
speak to his legal team and had not yet done so. Mphego agreed hereto
and indicated that the meeting was only for
intelligence gathering
purposes. According to the accused he was unaware of this meeting. He
was told that the meeting had occurred
by Mr Fraser who was the
deputy director of national intelligence. According to the accused
Fraser furnished him with no further
detail in regard to the meeting.
222.
In
cross examination it was suggested to the accused that he had been
telephoned by Manzini at 00:11 and at 00:22 by Mphego on 5
January
2008. He replied that he would
have
remembered had that happened. He was also asked whether Manzini had
telephoned him 13 times and whether he had telephoned Manzini
4 times
on 5 January 2008. His response was that he did not remember. He
accepted that the easiest way for this to be cleared up
was for the
relevant phone accounts to be produced. These phone accounts were
kept by Grove. The accused stated that he needed
a reason to ask
Grove to check this up. A request by the prosecutor for the
information did not constitute a sufficient reason
for the request.
Suffice it to say the relevant phone accounts were not produced.
223.
According to the transcript of the video recording:
223.1
The interview commenced with Agliotti referring to Nassif. A person,
who had previously been with military intelligence, had
been employed
by Nassif. Nassif had dismissed him from his employ. According to
Agliotti this person then went to the DSO and offered
to give them
information relating to Nassif. This person, known as Eugene, was, so
Agliotti is recorded as having said, was recruited
by O'Sullivan and
is the casual source referred to an e-mail sent by O'Sullivan to
Plitt. Nassif was arrested on a charge of fraud.
On his release from
prison after spending one night there Nassif told the DSO who had
been involved in the killing of Kebbie.
223.2
Agliotti
added that the DSO went on an "indaba" for three days. The
DSO took a reporter from the Mail and Guardian newspaper
with them.
This was done so that they could determine how they were going to
report about the accused and Agliotti. The interview
proceeded with
Agliotti stating that that the DSO had targeted him and the accused
in the press and that they had to tarnish Agliotti
so as to bring
down the accused.
223.3
It
was common knowledge according to Agliotti that the prime objective
of the DSO was to
"take
down"
the
accused and that it was politically driven. In response to a question
posed by Mphego as to reason for this, Agliotti stated
that the DSO
wished to retain its identity and that and did not wish to be
absorbed in SAPS. He added that that DSO had fought
for their lives
during the Khampepe commission.
223.4
Agliotti
added that another reason from which the political nature of the
prosecution of the accused could be determined was the
fact that he
continually told the DSO that he had not bribed the accused. He added
that the DSO
"go
on the whole
assumption
that because of my criminal activity, I had to have him on my side so
that he could protect me. I said he's never offered
me protection, I
never asked it of him because I respect
as
a
friend,
I respect his position that he held, I never ever once went to him
and said: "Please help me, I've been arrested for
drunken
driving". 'Please help me for this", 'Please help me for
that". "Give me a tender".
Agliotti
said that if he bribed the accused he would surely have got a tender
from SAPS for bullet proof vests which he had submitted
in the name
of Masupatsela Risk Management.
223.5
Agliotti
stated that the DSO's whole motive was to arrest the accused,
discredit him and that's it. Mphego is recorded to have responded
"By
hook or by crook".
Agliotti
replied
"They
don't give
a
damn".
223.6
Mphego
then focussed the discussion again on Nassif. ft appears from
Agliotti's response that Nassif stated that Agliotti had paid
for the
killing of Kebble and that he was arrested on that basis. Agliotti
stated that he had no role to play in the killing and
that he
furnished the DSO with a paper trail in regard to the
relevant payments.
Nonetheless,
Agliotti stated that he was arrested as the DSO had to
"take
(him) down".
223.7
Agliotti
stated that the perpetrators of the Kebbie killing were hidden from
SAPS by the DSO as they knew that they would be arrested
by SAPS.
223.8
Mphego
is recorded of having stated to Agliotti that he had hinted in his
statement about playing golf with the DSO. Agliotti responded
by
giving details of a visit with the DSO to Stellenbosch were his
statement was finalised.
223.9
The
interview concludes with Mphego recorded as having said
"...Like
you have indicated that you do not have a problem in giving us a
statement under oath on matters where you are not
a state witness.
But necessarily you want to talk to your lawyers first."...
"...That in this, this voluntary conversation
that we had I have
refused to take the statement under oath if you are a state witness
on a particular matter"
and
"Because
I can only take such a statement on issues that are not included in
the issues that you are a state witness on"
224.
Leask testified that he was unaware of the meetings at the
Balalaika Hotel and the Villa Via Hotel.
225.
During the course of Agliotti's cross examination counsel for the
accused referred Agliotti to an article which counsel said
had
appeared in the City Press the previous Sunday. The article is
exhibit A39. It should be emphasised that Agliotti had already

testified in regard to the events of 4 January 2008 and 7 January
2008 when he was confronted with this article, in the first 2

paragraphs of the article it is alleged that the meeting at the
Balalaika Hotel on 4 January 2008 was video recorded as well and
that
reporters from City Press had seen the video. It appears that neither
counsel for the state nor the accused were aware of
the existence of
the video, if it indeed exists. If the video does in fact exist it is
a matter of concern that the video was shown
to reporters who then
commented on the veracity of Agliotti. If the video does exist and
was shown to the reporters it would appear
that whoever caused the
video to be shown to them, was attempting to influence proceedings in
this court.
226.
Sn early January 2008 the accused brought an application in the High
Court. The affidavit deposed to by Agliotti on 4 January
2008 was
attached to the application. The affidavit deposed to by Mrwebi
(exhibit H9) and already referred to was also attached
to the
application. It is not apparent how this affidavit came into the
possession of the accused and
his
legal representatives. The accused sought the following relief in the
application:
"PART
A:
1.
That
this application be heard as an urgent application in terms of Rule
6(12) of the Uniform Rules of Court and that Applicant's

non-compliance with the rules with reference to time periods, form
and service be condoned;
2.
An
interdict prohibiting Respondents to proceed with the institution of
any criminal prosecution against Applicant and/or take any
steps in
the furtherance of any envisaged criminal prosecution against
Applicant pending the finalisation of the main application
for the
relief as set out in Part B of this notice;
3.
That
costs of the application with reference to Part A of the notice be
reserved for decision in the hearing of the main application
as set
out in Part B of this notice;
4.
Further
and/or alternative relief,
PARTB
1.
An
interdict prohibiting Respondents to proceed with the institution of
a criminal prosecution against the Applicant and/or taking
steps in
the furtherance of any envisaged criminal prosecution against the
Applicant;
2.
An
interdict prohibiting Respondents to execute any warrant for the
arrest of the Applicant relating to the present investigation
against
Applicant and/or to take any steps to obtain a warrant for the
Applicant's arrest;
3.
An
order to compel First and Second Respondents to provide Applicant
with full details of the specific allegations against Applicant;
4.
An
order to compel First and Second Respondents to provide Applicant
with an opportunity to answer to the specific allegations mentioned

in 6.3 above;
5.
An
order compelling Respondents to provide Applicant with a copy of the
report compiled by a
panel
of experts dealing with the alleged allegations against Applicant;
6.
An
order setting aside any warrant for the Applicant's arrest;
7.
An
order setting aside any decision already taken by the First
Respondent to prosecute Applicant on certain criminal charges
relating
to Respondents' present investigation against Applicant;
8.
An
order compelling First and Second Respondents to provide Applicant
with copies of all affidavits and other information placed
before the
relevant authority in the application for the issue of a warrant for
Applicant's arrest and the subsequent application
for setting aside
such warrant for Applicant's arrest;
9.
An
order compelling First and Second Respondents to provide Applicant
with copies of all affidavits and other information placed
before the
relevant authority in the application for the issue of a warrant for
the search of Applicant's office and/or residence
and the subsequent
application for setting aside such warrant.
In
the alternative to prayers 1 and 2 above the following relief will be
seek:
10.
An
interdict prohibiting Respondents to proceed with any criminal
prosecution against Applicant pertaining to their present
investigation
without providing him with details of the specific
allegations against Applicant and further providing him the
opportunity to answer
to such allegations and consider his answer to
the allegations prior to any final decision whether or not to
prosecute him;
11.
An
interdict prohibiting Respondent to execute any warrant for
Applicant's arrest pertaining to their present investigation against

Applicant and/or to take any steps to obtain a warrant for the
Applicant's arrest prior to providing him with details of the
specific
allegations against him, further providing the Applicant
with the opportunity to answer to such allegations and consider.' his
answer to the specific allegations".
The
application was dismissed for want of urgency.
227.
When
Agiiotti's affidavit came to the knowledge of Leask, he made
immediate contact with Hodes and Kanarek and had a meeting with
them.
This led to Agliotti making yet another affidavit. This affidavit was
deposed to on 10 January 2008. The affidavit is exhibit
A37. In
paragraph 13.15 of the affidavit Agliotti stated that
"At
all times as recorded in my plea and sentence agreement, I undertook
to testify in any matters in which I was required
to do by the DSO. I
have never maintained that I never ever bribed Selebi or that I was
not going to testify."
228.
On
8 January 2008 the lead prosecutor for the state was arrested by
SAPS. According to Mokotedi the charge brought against the lead

prosecutor was withdrawn a week later. As at 5 May 2010 the charge
has not been reinstated. The charge did not relate to the C-fund.
229.
Reference
can now be made to the evidence relating to payments allegedly made
to the accused and gifts allegedly given to the accused.
Agliotti
testified that he made payments to the accused and that he gave the
accused gifts. Save for admitting to receiving a Swiss
army knife,
which included a watch as an accessory as a birthday gift from
Agliotti, the accused denied that Agliotti
had
ever given him money or gifts. Agliotti in turn denied having given
the accused a Swiss army knife as put to him.
230.
It
is expedient to set out the evidence dealing with the alleged
payments first and thereafter to deal with the alleged gifts.
231.
Before
referring to the evidence of Agliotti, Muller and Flint in this
regard it is expedient to refer to the evidence of Friedman.
232.
Friedman
testified that on 24 August 2005, Kebble, his father, Stratton and
Buitendag resigned from the board of directors of JCI.
A new board
was appointed. The new board instructed KPMG to perform an
investigation on JCI and its subsidiaries. One of its subsidiaries

was CMMS. The project was called Project Hole. In December 2005, as
part of this investigation difficulty was encountered with
payments
made to Spring Lights. An enquiry (exhibit B 1) was sent to Agliotti
on 19 January 2006. In the enquiry, which is said
to be in connection
with Spring Lights, Agliotti was requested to
"Provide
a list of individuals and/or entities who received payments during
the course of your assignment as you explained
previously"
and
to state
"What
was the total amount that Spring Lights received
from
JCI directly and indirectly"
and
finally to reply to the question
"Did
you receive any payments from third parties who effected payments on
behalf of JCI".
The
enquiry was responded to as appears from exhibit B2. This was done in
April 2006. As to the first query the following is stated
in the
response :
"The
following analysis, from 5th December 2003 to 31
st
January
2005, has been compiled from bank statements
and
paid cheques.
M.Flint-
Spring Light Loan a/c
350,000
Sterling
cc
3,200,000
Sterling
Assets Management
8,020,000
New
Sterling Asset Management
5,165,000
Central
National Security Services
00,000
CRN
International Investment & Recovery
871,367
Care
Products
3,577,000
American
Express (Approved Travel)
1,810,000
Cash
Payments
2,224,186
J.Murray
300,000
T.Bond
700,000
F.Viljoen
32,089
M.Flint
129,200
Bank
Charges
5,158
TOTAL
R26,684,000"
As
to the second query the following is stated in the response:
"Compiled
from bank statements and received in 8 amounts over the period from
05/12/2003 to 08/05/2004.
'JCI
7,600,000
JCI
Group (Consolid) 12,000,000
TOTAL
R19.600.000'
As
to the third query the following is stated:
'Yes.
Compiled
from bank statements and received in 5 amounts over the period
29/04/2004 to 18/01/2005.
Consolidated
Mining Man Sen/
R7,084,000"
As
will appear hereinafter the reality differs substantially from the
response furnished by Agliotti
233.
In June 2006 JCI and Rand Gold and Exploration Company Limited
reported certain suspected offences to the DSO. KPMG was then

appointed by the DSO to assist them in an investigation which was
called "Empire K". The Empire K investigations in turn
lead
to a further investigation by KPMG which related to the accused. KPMG
was asked to analyse the accused's bank accounts, credit
card
accounts, investment accounts and foreign currency trades performed
by him and on his behalf by the South African Police Service
and they
were asked given a certain category of transactions identified in a
draft of an affidavit by Agliotti, to determine whether
they could
identify any transactions with those characteristics in the bank
statements of Spring Lights and also to determine the
funding of
Spring Lights. The results of the investigation are set out in a
report styled
"Report
on factual findings dated 19 March 2009"
(exhibit
C1) and two volumes of documents (exhibit C3 and C4) and in an
addendum to exhibit C1 dated 2 November 2009 (exhibit C2)
and three
volumes of documents (exhibits C5, 6 and 7). Volumes C3 to C7 contain
annexures which were generated by KPMG and exhibits
which were handed
to KPMG by the DSO.
234.
Annexure M (exhibit C3 p153) reflects the total income and
expenditure as reflected in the accused's bank account for the period

13 January 2003 to 4 January 2007. According to Friedman and as is
apparent from annexure M, the income into the accused's bank
account
exceeded the expenditure from the bank account by R152970.45. An
amount of R400000, which is reflected as an item of expenditure,
was
utilised by the accused to acquire a unit trust investment. This
R400000 is also an accrual to the accused's estate. Accordingly
at
the end of the period the accused was R552000 better off than at the
commencement of the period. The detail of the information
set out in
Annexure M appears from annexure L1 (exhibit
C5
p753 to p760). The columns in annexure L1 from left to right are in
respect of the following: alleged payments made to the accused
from
Spring Lights, details of transactions in the accused's bank account,
details of transaction in the accused's two credit card
accounts-each
account is reflected in a separate column, accused's and his wife's
foreign exchange transactions and the source
of the information in
respect of the latter.
235.
Annexure
K (exhibit C3 p143) reflects the monthly comparison for the period
February 2003 to December 2006 of income and expenditure
from the
accused's bank account and credit cards. As is apparent from the
column entitled
"Nett",
the
outflow from the account exceeded the inflow from the account in most
months. During the entire period the inflow (R 2,421,881.48)
exceeded
the outflow (R 2,296,375.05) by R125506.43. It should be noted that
Annexure M deals with a slightly longer period than
annexure L1. The
R400000 acquisition of unit trusts must also be kept in mind.
236.
Friedman
testified that the cash flow in the accused's bank account was under
pressure. The inflow only exceeded the outflow by
reason of the
inflow of amounts into the account in respect of pension payments and
the like. See in this
regard
the inflows into the accused's account in November 2005.
237.
In regard to annexure U (Exhibit C3 p163) Friedman testified that the
annexure represents the accused's monthly discretionary
spend. This
is achieved by disregarding debit orders on the accused's bank
account and only having regard to cheque payments made
from that
account, cheques cashed from that account, cash withdrawals from that
account and credit card expenditure. This annexure
deals with the
period March 2004 to December 2005. The content of the annexure is
set out
hereunder:
Month
Cheque
payments
Cheques
cashed
Cash
withdrawals
Credit
cards expenditure
Aggregate
total
Mar-04
34
281.00
5
088.00
22
000.00
1
550.00
62
919.00
Apr-04
34
187.23
0.00
5
000.00
941.35
40
128.58
May-04
39
888.55
0.00
1
000.00
7
562.49
48
451.04
Jun-04
27
033.84
13
000.00
10
000.00
1
841.78
51
875.62
Jui-04
15
808.72
0.00
16
000.00
3
904.28
35
713.00
Aug-04
29
265.39
^000.00
11
000.00
7
825.17
54
090.56
Sep-04
24
767.45
2
160.00
10
800.00
2
504.32
40
231.77
Oct-04
31
826.61
0.00
15
000.00
3
242.67
50
069.28
Nov-04
9
377.90
0.00
3
000.00
3
186.95
15
564.85
Dec-04
18
370.60
3
000.00
3
000.00
7
485.60
31
856.20
Jan-05
0.00
0.00
0.00
465.35
465.35
Feb-05
0.00
0.00
0.00
188.12
188.12
Mar-05
19
397.50
0.00
0.00
876.15
20
273.65
Apr-05
11
830.86
0.00
1
000.00
944.75
13
775.61
May-05
15
585.91
0.00
16
300.00
10
462.98
42
348.89
Jun-05
40
781.70
0.00
0.00
1
152.80
41
934.50
Jul-05
22
406.00
0.00
0.00
0.00
22
406.00
Aug-05
25
287.99
0.00
13
000.00
9
254.37
47
542.36
Sep-05
20
381,66
0.00
5
500.00
1
069.37
26
951.03
Oct-05
0.00
0.00
0,00
2
351.41
2
351.41
Nov-05
3
246.73
0.00
0.00
1
123.21
4
369.94
|
Dec-05
3
825.00
0.00
0.00
4
596.81
8
421.81
Total
427
550.64
29
248.00
132
600.00
72
529.93
661
928.57
Average
19
434.12
1
329.45
6
027.27
3
296.82
30
087.66
238.
Friedman pointed out that:
238.1
There
were no cash withdrawals in January, February, March, June, July,
October, November and December 2005 from the accused's bank
account.
238.2
Since
January 2005 no cheques were cashed on the account. No cheques were
cashed on the account in April, May, July, October and
November 2004.
238.3
In
January and February 2005 and October 2005 no cheque payments were
made from the account.
238.4
There
was a significant reduction in credit card expenditure in the months
of January to April 2005 and no credit card expenditure
in July 2005.
238.5
For
the 10 month period March to December 2004 the total of cash
withdrawals from and cheques cashed on the account amounted to

R126048. For the 12 month period from January to December 2005 the
total of cash withdrawals and cheques cashed amounted to R35800.
238.6
The total expenditure from the accused's bank account for the period
March 2004 to December 2004 amounted to R430899.90. It
only amounted
to R231028.67 for the period January to December 2005. According to
Friedman and as is apparent from annexure l_1
(exhibit C5 p753) the
pattern of reduced expenditure continued into 2006 and only started
picking up round about July 2006.
239.
Friedman testified that he had been referred to a draft affidavit by
Agliotti in which he had indicated that certain cash payments
had
been made to the accused. As far as the draft affidavit is concerned
Leask testified that he furnished Friedman a print out
of a portion
of Agliotti's draft affidavit that was being worked on containing
only that which was relevant to Friedman. Friedman
testified that
reference was then had to the Spring Lights account and in particular
to the cash cheques in that account in order
to determine if there
were any payments that had the characteristics in description or in
amount which could be associated with
the allegations made by
Agliotti. Seven such cheques were identified. These cheques are set
out in the schedule in exhibit C1 p33.
Particulars of these cheques
are as follows:
Cheque
number
Counter
foil note
Cheque
date
Bank
stamp date
Cheque
Amount R
0127
"CASH
JSGA"
14
June 2004
14
June 2004
10
000.00
0201
"CASH
COP"
8
November 2004
8
November 2004
10
000.00
0204
"CASH
COP"
18
November 2004
18
November 2004
5
000.00
0222
"CASH
200000"
13
December 2004
13
December 2004
200
000.00
0226
"CASH
COP"
20
December 2004
20
December 2004
100
000.00
0271
"CASH
GR Chief
12
Aprii 2005
13
April 2005
55
000.00
0355
"CASH
Chief
28
September 2005
28
September 2005
30
000.00
Total
R410
000.00
240.
These
seven cheques and their counterfoils were placed before Agliotti for
the first time approximately two to three weeks before
the trial when
he consuited with the state prosecutors in preparation for the trial.
241.
Just
before Friedman's cross examination ended he was asked whether he had
encountered Spring Lights' cheques or counterfoils to
cheques in
which reference was made to Stratton either by name or by use of his
initials "JS". He replied that he could
not recall
encountering such cheques or counterfoils. He was asked to inspect
Spring Lights' cheques and counterfoils to ascertain
whether there
were Spring Lights cheque stubs which referred to John Stratton as
JS. Friedman did the exercise and found 3 such
cheques. The 3 cheques
were made out to Monster Marketing. The first cheque, cheque number
159 dated 3
August
2004, was in the amount of R182274.30. The cheque stub is annotated
"J.S.M.B".
The
second cheque, cheque number 193 dated 12 October 2004, was in the
amount of R18607.44. The cheque stub is annotated
"JS
Car".
The
third cheque, cheque number 213, dated 1 December 2004, was in the
amount of R18607.44. The cheque stub is annotated
"CarJS".
242.
Agliotti
testified that in the very beginning of his relationship with the
accused in the early 1990s the accused indicated to him
that he had
his own problems and that he had a medical bill payable in respect of
medical treatment for one of his sons. The bill
was for approximately
R1200. Agliotti testified that he paid the doctor by cheque. The
accused denied this, describing it as a
"blue
lie".
243.
According
to Agliotti prior to his involvement with Kebble he would pay the
accused money from his own funds. The accused would
come to
Maverick's office and money which had been placed in an envelope
would be given to the accused in the board room and the
accused would
leave. The amounts that were paid to the accused were small amounts
possibly R6000 to R10 000 at a time. When Agliotti
became involved
with Kebble the amounts increased as he told "them" he was
looking after the accused financially. According
to Agliotti he would
request Flint to draw a cash cheque. Flint would give him the money
and he would hand it to the accused. The
payments occurred mostly in
the board room on the first floor of Maverick's offices, at the
Europa Coffee shop and on one occasion
at O R Tambo International
Airport then known as the Johannesburg International Airport.
244.
Agliotti testified the he paid the accused in rand and dollar
currency approximately R1m. These payments were made over a
period of
a
"year
and a bit.
Agliotti
stated that he could recall making these payments. He added that the
accused had informed him that he had a problem and
that he needed
approximately R1m. Agliotti did not enquire as to the nature of the
problem but indicated that he would assist the
accused over a period
of time. !n this regard Agliotti referred to two payments, one of
R120000 and the other of R200000.
245.
As to the payment of R120000 Agliotti testified that he asked Flint
to cash a cheque in the sum of R100000. Agliotti added
to that amount
the sum of R20000 that he had on him. The total sum of R120000 cash
was put in an envelope and handed to the accused.
As to the payment
of R200000 Agliotti testified that a cheque was cashed for that
amount
and the money was packed in a large envelope. He asked Muller to
assist him in the packing of the money in the envelope.
He handed the
envelope to the accused in Maverick's boardroom. He added that he
had originally been under the impression that
Flint had written the
cheque, but after thinking about it and being presented with the
cheque, he realised that the cheque had
been made out and cashed by
him. In regard to these two payments the accused was referred to
exhibit A10 and A17 being the cheque
and counterfoil in respect of
the payment of R200000 and A11 and A18 being the cheque and
counterfoil in respect of the payment
of R120000, made up of the
proceeds of the cash cheque of R1
00000
and
the R20000 cash added thereto. It is apparent from exhibit A10 that
the cheque is dated 13 December 2004. Exhibit A17 that is
the
counterfoil to the cheque of R200000, bears two hand writings. The
date, the word
"cash"
and
the numerals 200000 on the top of the counterfoil were written by
Agliotti. The numerals 200000 at the bottom of the counterfoil
were
written by Flint. It is apparent from exhibit A11 that the cheque is
dated 20 December 2004. The cheque was drawn by Flint
on Agliotti's
instructions. Exhibit A18, that is the counterfoil to the cheque of
R100000, was also completed by Flint and bears
the word
"CASH"
and
underneath that word the word "COP'. Agliotti testified that
he
presumed that the reference to "COP
1
was a reference to the accused.
246.
Agliotti
was asked in his evidence in chief if there were any witnesses
present when he handed money over to the accused. He responded
by
testifying that on only one occasion was a witness present. The
witness was Muller. Agliotti testified that he asked Flint to
cash a
cheque for R100000 which he did. Agliotti came to the office and
obtained the money. He had R20000 in his briefcase and
he asked
Muller to package the money. Agliotti was late for the meeting and
proceeded into the boardroom to meet with the accused.
Muller entered
the boardroom and placed the package on the table. Agliotti slid the
package across the table to the accused.
247.
Muller
testified that on one occasion Agliotti telephoned her. He told her
that he was running late and that he was due to meet
the accused. He
asked Muller to give the accused coffee when he arrived and to talk
to him. The accused did arrive at Maverick's
offices. Muller gave the
accused coffee in the boardroom. Muller added that Agliotti came
running up stairs into the boardroom.
He greeted the accused and
asked Muller to come with him into their office. In the office
Agliotti handed Muller money from his
briefcase
and he asked her to count the money. He said that the money that he
handed to her should be R110000. Agliotti had a money
counting
machine in the office. Muller counted the money and found that it
amounted to R120000. She removed R10000 and put the
balance in a
white bank bag. Muller took the bank bag into the boardroom. She
placed the bag in front of Agliotti. He slid the
bag to the accused
and said to the accused "Here
you
go my china"
or
"my
broer"
but,
she added that she is convinced it was "my
china".
The
accused according to Muller looked decidedly uncomfortable and did
not touch the bag. Muller thereupon left the boardroom. When
the
accused left Agliotti shouted to Muller that he was leaving. She
waved good-bye and saw he was carrying the bank bag. Thereafter

Muller joked with Agliotti that the accused had got R110000 and that
she had only got R10000. Agliotti put the R10000 in his briefcase.

According to Muller she told Agliotti that it was not the way for
things to happen that is for the National Commissioner of Police
to
be paid off by Agliotti, He told her to mind her own business.
248,
Muller testified in chief that she thought this payment took place at
the end of 2004. The reason for the money was that the
accused was
taking his family overseas on holiday.
249.
Agliotti
was referred to further cheques that had been identified by Friedman.
He was referred to exhibit A7 which is a cheque for
R10 000 dated 14
June 2004. The counterfoil to the cheque is exhibit A14. The cheque
is drawn to cash and it and the counterfoil
were completed by Flint.
The counterfoil has on it the word
"CASH"
and
there under the letters
"JSGA".
Agliotti
testified that
"JSGA"
referred
to himself and the accused. Flint confirmed his signature and hand
writing in the cheque and counterfoil. According to
him
"JSGA"
would
have been noted as a result of what Agliotti had told him. Flint was
referred in his evidence in chief to paragraph 21 of
a statement
which he had made (exhibit B4). In that paragraph he stated in regard
to this counterfoil that
"JSGA"
refers
to John Stratton and Agliotti. He testified that he was wrong in
stating that in the statement. He stated that the only JS
that came
to mind when making the statement was John Stratton. Flint says he
had been working with Stratton at the time but there
was no
particular issue that he could tie Stratton to the cheque.
250.
Agliotti
was referred to exhibit A8 which is a cheque for R10 000 dated 8
November 2004. The counterfoil to the cheque is exhibit
A15. The
cheque is drawn to cash and it and the counterfoil were completed by
Flint. The counterfoil
has
on it the word
"CASH'
and
underneath it "COP. There are two dots under the C and the O.
Agliotti testified that "COP' can only refer to the
accused.
Flint testified that he put the dots under the C and the 0 and that
the note reads C.O.P. In the statement, exhibit B4,
Flint stated that
this payment related to a retired policeman who he understood had
been involved in a car crash. Flint testified
that he now recalls
that the policeman came to Maverick's old offices. This cheque would
have been made out at the new offices
and he does not recall the
policeman coming to the new office.
251.
Agliotti was referred to exhibit A9 which is a cheque for R6000 dated
18 November 2004. The counterfoil to the cheque is exhibit
A 16. The
cheque is drawn to cash and the cheque and the counterfoil were
completed by Flint. The counterfoil has on it the word
"CASH"
and
underneath it "COP'. Agliotti testified that this could only be
a reference to the accused. Flint stated that he does not
know what
"COP' means. In the statement, exhibit B4, Flint stated that
this probably refers to the same policeman as is referred
to above.
Flint testified that his statement was not correct.
252.
Agliotti was referred to exhibit A12 which is a cheque for R55 000
dated 12 April 2005. The counterfoil to the cheque is exhibit
A19.
The cheque is drawn to cash and the cheque and the counterfoil were
completed by Flint, The counterfoil has on it the words
"CASH
G.A. CHIEF',
Agliotti
stated that this refers to the accused. Flint testified that the
counterfoil was poorly written. He testified that it was
either
"Cash
GA Chief
or
"Cash
GL Chief
or
"GR
Chief.
He
had no knowledge of what the notation on the counterfoil meant.
253.
Agliotti
was finally referred to exhibit A13 which is a cheque for R30 000
dated 28 September 2005. The counterfoil to the cheque
is exhibit
A20. The cheque is drawn to cash and the cheque and the counterfoil
were completed by Flint. The counterfoil has on
it the words "CASH
(Chief)".
Agliotti
testified that
"Chief
would
refer to accused. Flint testified that he had no knowledge of what
"Chief
refers
to.
254.
According
to Muller JCI transferred relatively large amounts into Spring
Lights. Agliotti would then instruct Flint to write out
cheques or
draw cash. Flint would hand cash to Agliotti who would put it in
envelopes or in a black briefcase. Agliotti would put
amounts like
R5000, R2000 R10000 into envelopes. Agliotti wrote initials on
envelopes and either people would come and collect
the envelopes or
he would put them in his briefcase. Muller assisted Agliotti in this
on about six occasions. Agliotti would tell
her how much to put in
each envelope and thereafter put initials on the envelopes or give
her the envelopes with the initials already
on. Some of the initials
were AD which referred to Anthony Dormehl, CN which referred to Clint
Nassif, CB which referred to Charles
Bezuidenhout and JS which
referred to the accused. As to JS Muller testified that Agliotti had
told her that JS referred to the
accused and the accused would arrive
at the office most of the time after Agliotti had made the notation
JS on the envelopes.
255.
Agliotti testified to making a payment to the accused for a specific
reason. He testified that an amount of R30 000 was paid
to the
accused in cash at Europa Coffee Shop in Sandton for an Interpol
dinner that the accused attended. Agliotti added that the
accused had
to attend an Interpol dinner in France where he was lobbying for
votes to become president of Interpol. Ten to twelve
people were to
attend the dinner. Agliotti indicated that he was happy to sponsor
the dinner. The estimated cost of the dinner
was calculated and an
amount of R30 000 was arrived at in respect of the cost of the dinner
after a per head calculation. Agliotti
thought that this had occurred
in 2005.
256.
Muller
testified that she overheard a telephone conversation between
Agliotti and the accused whilst in Agiiotti's Mercedes Benz
motor
vehicle. The motor vehicle is fitted with a car phone and the
conversation was conducted on this phone. During the call the
accused
asked Agliotti for a R10000 loan which he required for his son's
birthday. Agliotti agreed and said he did not have the
money on him
and that the accused should come the next day to the office to
collect the money. After the call was concluded Agliotti
said "Lend
my
ass. I will never see that money again."
The
next day Muller asked Agliotti if he had remembered his friend. He
said yes and took the money out of his bag. The accused then
arrived
at Maverick's offices and he and Agliotti went into the boardroom.
Later Agliotti told Muller that he had handed the accused
the money
in the boardroom.
257.
As
to the reason for making the payments Agliotti testified that he made
them because he and the accused were friends and because
he needed
the accused in his business dealings and because he needed the
accused close to him. He added that he needed him for
purposes of the
Kebbles.
258.
Reference
will now be made to the evidence in respect of gifts. Agliotti
testified that he and the accused enjoyed shopping at shops
within
the Surtee group in Sandton City. These shops may be described as
exclusive men's clothing stores. According to Agliotti
he and the
accused would often meet for coffee in Sandton. They would often just
meet for coffee. On other occasions they would
shop together. The
accused would buy articles for himself and Agliotti would instruct
the shop assistants to put the articles on
his account. This happened
over a period of a couple of years.
259.
Agliotti
testified that he bought two pairs of shoes for the accused at
Harrods in London. He also bought him a pair of Louis Vuitton
shoes
in Hong Kong. Agliotti recalled purchasing for the accused Hugo Boss
knitwear jerseys which the accused enjoyed wearing and
an Aigner
jacket in a hounds tooth fabric. Agliotti had purchased one such
jacket for himself and the accused liked it so he purchased
one for
the accused. Agliotti testified that his suit size is a 60 whilst the
accused's size was a 58 or 60 depending on the cut.
!n addition he
bought the accused's wife a red patent leather Louis Vuitton handbag
for her birthday. As far as he could recall
the purchase price was
R10 000. The accused was in the same shopping centre but not with
them
at the time of the purchase. He also purchased for Matshoba a Gucci
handbag at a cost of 500 pounds. Muller testified that
when she was
in the United Kingdom with Agliotti, Agliotti went into the Gucci
shop and said he was buying a handbag for Anne Selebi.
It should be
emphasised that there was no suggestion that the clothing was bought
for the accused. The evidence was at all times
that the clothing was
bought for the accused's sons.
260.
Agliotti purchased for the accused's sons clothing from a store
called Fubu in the Sandton City shopping centre. The accused
was
present. Accused had acquired an interest in Fubu and had put it in
his wife's name. Muller testified that she was at Fubu
together with
Agliotti, the accused, his wife Anne and the accused's sons. The
accused's wife left the shop. Agliotti let the accused's
sons buy
shoes, shirts jeans and whatever they wanted. The purchases were
placed in a packet and they left the shop. Agliotti told
the
saleslady, whom she described, that he would pay for the purchases in
the morning. The accused dealt with this in his evidence.
He denied
the allegation in the following manner:
"I
know he even says something about, some nonsense about Fubu. My
children do not wear Fubu. I do not wear Fubu. I would be
regarded as
a mad person if I were to wear Fubu. You know what Fubu is, Mr
Celliers?
Fubu
is, if you have ever seen a match of, what is this, Basket ball, this
American thing, basket ball, they put on these baggy
huge pants and
huge T-shirt, everything is huge. That is Fubu. My children do not
put on Fubu. I do not know if I can put Fubu,
I think everybody would
think something has gone wrong, this case has made Jackie to lose his
mind. There is no such thing".
261.
One of the shops from which clothing purchases were made is Grays.
Exhibit A22 p 62 dated 31 October 2004 is an invoice from
Grays and
reflects purchases by Agliotti of 2 Aigner jackets and an Aigner
polo, Agliotti testified that he has not bought two
jackets at the
same time (as opposed to suits). He did not wear Aigner polo shirts.
He testified that he was sure that he would
have bought them for the
accused. Exhibit A22 p 6 dated 29 March 2005 reflects the purchase
of an Aigner jacket and Hugo Boss
knitwear. The Aigner jacket is
reflected as size 58. Agliotti testified that he was certain that he
bought the jacket for the accused.
Agliotti testified that he
purchased two Carnali ties. This is confirmed in exhibit A22 p 59 and
p 69. One of the ties, he testified
he presumed and expected was for
the accused.
262.
Maharaj, the bookkeeper and payroll administrator of Surtee
Esquire, testified as to the accused's and Agiiotti's purchases
from
stores in the group. In respect of both Agliotti and the accused
he referred to a Debtor Transaction List. The list
sets out
purchases and payments in respect of the purchases for each of them.
The back up documents in respect of each transaction
was also
identified by the witness. These documents are contained in exhibit
E. It is apparent from the documentation that the
accused is
reflected to have purchased goods for the first time on 29 October
2004 in the amounts of R11200 and R1000. Thereafter
there were
purchases on 29 August 2005 and 29 September 2005 in the amounts of
R2980 and R56430 respectively. It is noteworthy
that the first
payment on this account was only made on 16 October 2005 when a
payment of R25000 was made. This payment was made
by way of cash.
Subsequent payments on the account in the amount of R5000 (4
payments) and one of R4000 were made by way of cheque
over the period
6 March 2007 to 9 February 2008. The present outstanding balance on
the account amounts to R24283. It is apparent
from the documentation
that Agliotti is reflected to have purchased goods for the first time
on 29 June 2004. His account presently
reflects an outstanding
balance of R15182.20 the last payment having been made on 28
September 2006.
263.
It
is apposite to set out at this stage the relevant legal principles
which prescribe the approach which has to be followed in the

determination of the trial.
264.
It
is trite law, but nonetheless law that bears repetition, that the
State must prove its case against the accused beyond reasonable

doubt. Likewise it is trite law which also bears repetition, that
there is no onus on the accused. If the version proffered by
the
accused is reasonably possibly true the accused is entitled to his
acquittal. As was pointed out in S v van der Meyden
1999 (2) SA 79
(W) at 80 H
"These
are not separate and independent tests, but the expression of the
same test when viewed from opposite perspectives".
The
reason for the onus being formulated in this manner is the natural
and constitutionally correct desire to preclude the innocent
from
being convicted and unjustly punished.
265.
In
this regard it is sufficient to refer to S v Jaffer
1988 (2) SA 84
(C) on 89 B and further where it was held:
In
S v Kubeka .... Slommowitz AJ said in regard to an accused's story:
'Whether
I subjectively disbelieve him is, however, not the test, I need not
even reject the State case in order to acquit him.
I am bound to
acquit him if there exists a reasonable possibility that his evidence
may be true. Such is the nature of the onus
on the State.'
Referring
to this passage Van der Spuy AJ said at 715G:
'In
other words, even if the State case stood as a completely acceptable
and unshaken edifice, a court must investigate the defence
case with
a view to discerning whether it is demonstrably false or inherently
so improbable as to be rejected as false.'
I
agree. The test is, and remains, whether there is a reasonable
possibility that the appellant's evidence may be true. In applying

that test one must also remember that the court does not have to
believe her story; still less has it to believe it in all its

details. It is sufficient if it thinks there is a reasonable
possibility that it may be substantially true
(RvM1946AD
1023 at 1027)."
266.
The judgment in S v van der Meyden supra, is instructive as to
approach that a court must adopt in this regard. It was held
in
regard to the same passage in the Kubeka judgment as was referred to
in S v Jaffer supra that
"That
passage does no more, in effect, than to reiterate that the
conclusion of a criminal court is not to be reached merely
by
choosing what it considers to be the better of two competing versions
(Hlongwane's case supra at 341 A; S v Singh
1975 (1) SA 227
(N)).
Purely as a matter of logic, the prosecution evidence does not need
to be rejected in order to conclude that there is a reasonable

possibility that the accused might be innocent. But what is required
in order to reach that conclusion is at least the equivalent

possibility that the incriminating evidence might not be true.
Evidence which incriminates the accused, and evidence which
exculpates
him, cannot both be true - there is not even a possibility
that both might be true - the one is possibly true only if there is
an equivalent possibility that the other is untrue. There will be
cases where the State evidence is so convincing and conclusive
as to
exclude the reasonable possibility that the accused might be
innocent, no matter that his evidence might suggest the contrary
when
viewed in isolation."
267.
As was held in S v Khumalo
[1991] ZASCA 70
;
1991 (4) SA 310
(A) at 327 G to H, in
regard to an alibi, but equally applicable to any defence raised by
an accused, the correct approach is to
consider the alibi against the
totality of the evidence and the courts impression of the witnesses.
In considering the alibi or
defence, the court must, as was confirmed
in S v Jochems
1991 (1) SACR 208
(A) at 211C-F that the onus remains
throughout this process on the State and that there is no onus of any
nature on an accused
to prove the truth of an alibi or it may be
added of a defence raised by the accused. Where a court finds that an
accused's version
might reasonably be true, that is sufficient for
the accused's acquittal.
268.
Where there is a conflict of fact between the witnesses for the State
and that of the accused and the accused's witnesses,
it is
impermissible to approach the case on the basis that because the
court is satisfied as to the reliability and credibility
of the State
witnesses that, therefore, the evidence of the defence witnesses,
including the accused, must be rejected. The proper
approach in such
a case is for the court to apply its mind not only to the merits and
demerits of the State witnesses and the defence
witnesses, but also
to the probabilities of the case. See in this regard S v Singh
1975
(1) SA 227
(N) at 228 F to H. Guidance as
to
the approach that a court will adopt in determining mutually
destructive factual versions can be found in the judgment in
Stelienbosch
Farms Winery Ltd & Another v Martell CIE &
Another
2003 (1) SA 11
(SCA) where the following was held in
paragraph 5:
"On
the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So, too, on a number
of peripheral areas
of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving
factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court
must make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As
to (a), the court's
finding on the credibility of a particular witness will depend on its
impression about the veracity of the
witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness'
candour and demeanour in the
witness-box, (ii) his bias, latent and blatant (Hi) internal
contradictions in his evidence, (iv)
external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements
or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance
compared to that of
other
witnesses testifying about the same incident or events. As to (b), a
witness' reliability will depend, apart from the factors
mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and
(ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of
the probability or
improbability of each party's version on each of the disputed issues.
In the light of its assessment of (a),
(b) and (c) the court will
then, as a final step, determine whether the party burdened with the
onus of proof has succeeded in
discharging it. The hard case, which
will doubtless be the rare one, occurs when a court's credibility
findings compel it in one
direction and its evaluation of the general
probabilities in another. The more convincing the former, the less
convincing will
be the latter. But when all factors are equipoised
probabilities prevail."
This
approach, of course, does not alter that which has already been set
out above and that is that it is for the state to prove
its case
against the accused beyond reasonable doubt and that if the accused's
version is reasonably probably true the accused
is entitled to an
acquittal.
269.
A factor not mentioned in the Stellenbosch Farms Winery Ltd
judgment is the value of circumstantial evidence in a
criminal
case. As was stated in S v Sikosana
1960 (4) SA 723
A at 729 D there
is no limitation upon the kind of evidence that may adequately
confirm a confession or prove aliunde the commission
of the offence
charged. Proof of either or both of these factors may be purely
circumstantial, but may conceivably be so utterly
conclusive as to be
far more satisfactory than the testimony of a person who purports to
have been an eye witness.
270.
Against
this background consideration must be given to the credibility and
reliability of the two main witnesses in this trial,
Agliotti and the
accused. It should be emphasised that save on the issue of payments,
the accused's counsel did not attack the
credibility of any state
witness. They limited their attack to the credibility of Agliotti and
Muller.
271.
The
starting point of this consideration as far as Agliotti is concerned
is his arrest and remand in custody in November 2006. It
was made
clear to Agliotti by his counsel that the key to obtaining bail on
the Kebble murder charge and to avoid numerous other
serious charges
was to provide the DSO with a statement implicating the accused. To
this end Agliotti was toid by his counsel whilst
in custody to make
the notes which now appear as exhibit A21. It should however be
noted, that save for the single
visit
by Leask at the request of and in the presence of Agiiotti's legal
representatives, Agliotti had no contact with the DSO prior
to him
making the notes. Nonetheless, the mere fact that the notes were
prepared with the intention set out above, must result
in the content
of the notes being treated with circumspection. It must also be borne
in mind that these notes served as the genesis
of Agiiotti's
affidavits of 11 December 2006 (exhibit A43 and its typed version
exhibit A32) and 21 November 2007 (exhibit A33)
and of course his
evidence in this court. Clearly, in view hereof, Agiiotti's evidence
in this court must be viewed with circumspection.
272.
In the affidavit deposed to by him on 4 January 2008 (exhibit A23),
Agliotti stated that
"I
maintained to the DSO all along that I never bribed Selebi at all and
I was not going to testify".
This
was put to Agliotti in cross examination and he was asked when his
stance had changed. Agliotti replied stating that the change
in
stance had occurred when he concluded the plea bargain in the Paparas
matter. This serves to reinforce the conclusion that Agiiotti's

evidence must be viewed with circumspection.
273.
Agliotti's approach to the truth was revealed in cross examination.
Firstly in paragraph 9 of the affidavit of 4 January
2008 (exhibit
A23) Agliotti had stated that
"The
DSO requested me to entice Selebi and his personal aid Wessel Jenner
to my house and to record all and any conversations".
Already
in his evidence in chief Agliotti had stated that this statement was
not true. When asked in cross examination why he included
this
statement in the affidavit, Agliotti responded that he did so because
he believed that it was what the NIA wanted to know.
He added that in
his view, the DSO and the NIA. were not the best of friends and he
was trying to do everything to discredit the
DSO. He accepted that in
the process of negotiating a deal with the authorities he would do
anything to ensure the conclusion of
a beneficial deal and that he
would not allow truthfulness to inhibit the process. Secondly in the
affidavit of 11 December 2006
Agliotti stated that Varejes paid by
credit card for the accused and/or his family members to go to
Mauritius because of his help
with the
"Poht
matter"
and
various other things. In cross examination it emerged that Agliotti
did not have personal knowledge hereof despite
the
affidavit commencing with the usual statement that the content
thereof was within his persona! knowledge. Thirdly Agliotti
falsely
stated to Kebble and Stratton that Nassif rendered
certain
services to SAPS under the direct control of the accused. This was a
false statement and was made as part of a process which
culminated in
Kebbie appointing Nassif and his company to provide services for
Kebbie. Fourthly in the affidavit of 10 January
2008 (exhibit A37)
Agliotti unequivocally stated that he had
"never
maintained that (he) never ever bribed Selebi or that (he) was not
going to testify".
In
the affidavit of 4 December 2008 (exhibit A23) Agliotti stated, only
6 days earlier, that he had never bribed the accused.
274.
It is evidence of this nature that emboldened the accused's counsel
to submit, as they put it, without fear of contradiction,
that
Agliotti can be described as probably one of the most untruthful and
unreliable witnesses ever to testify in this court. By
its very
nature this is a very broad submission and one that is impossible to
evaluate. It will become apparent hereinafter that
even restricting
the submission to the present matter, Agiiotti's title, as awarded to
him by the accused's counsel, is at least
under severe threat or
perhaps no longer his. Irrespective of this it is clear that
Agiiotti's evidence must be treated with the
greatest circumspection
and can only be accepted if corroborated by other acceptable
evidence.
275.
Any assessment of the accused's credibility must commence by the
striking difference in what had been put to Agliotti and the

accused's own evidence as to the impression that the accused had of
Agliotti. It was put to Agliotti that the accused regarded
him as an
international businessman and a businessman of standing. In cross
examination the accused was asked what his understanding
was of the
business that Agliotti was involved in or conducting. The accused's
response was that he could not say. He added that
he always knew that
Agliotti was a hustler trying to make ends meet. One day he was
involved in export and import, the next day
in mining and the next in
sports promotion. By no stretch of the imagination can that which was
put to Agliotti be reconciled with
the accused's description of
Agliotti as a hustler. This divergence typifies the accused's
evidence. The accused throughout his
evidence demonstrated a capacity
to tailor his evidence to his best advantage. Often this resulted in
his credibility being impugned.
276.
Numerous issues of importance were not placed in dispute by the
accused's counsel during the state's case or raised with the
state's
witnesses so that they could deal with them only to be disputed by
the accused whilst giving evidence. A few examples in
this regard
will suffice. First, it was not
disputed
that Agliotti had requested the accused to meet Tidmarsh. In the
accused's evidence in chief this issue was not even touched
on. It
was only in cross examination that the accused stated for the first
time that he had requested Agliotti to arrange the meeting
with
Tidmarsh. Second, it was not disputed that Agliotti had asked the
accused to attend the meeting with Nassif and others including

Jumean. Subsequently the accused testified that Nassif had telephoned
him directly to arrange the meeting. Third, exhibit H5a was
not put
to Agliotti. This constitutes a massive change in stance by the
accused. Fourth, it was never put to Agliotti that the
accused's sole
interest in him was that of information gathering. Nor was the
information that was allegedly obtained from Agliotti
put to him. In
this regard it must be emphasised that Agliotti testified that he and
the accused were friends. Had this been put
to him Agiiotti's
response would have been interesting. According to Agliotti he and
the accused were friends. Fifth it was never
put to Agliotti that it
took him two years to persuade the accused to see the Kebbles. (The
closest one comes to any reluctance
by the accused appears in the
transcript of the recording of the meeting between Mphego and
Agliotti. There it is stated that at
the very beginning
"they
wanted to meet with Jackie, I asked Jackie and he said no. Right in
the beginning he said I want you must deal with
Mphego...").
Even in this passage there is no indication of a period of reluctance
for a period of two years. In any event,
such a lengthy period of
reluctance appears to be improbable regard being had to the timeline
of the relevant events.
277.
In
making submissions in regard to the accused's credibility, counsel
for the state referred to what they described as the big five
lies.
The accused's counsel did not challenge or seek to ameliorate this
submission.
278.
The
first of the big five lies relates to an alleged meeting between the
accused and Pikoli. This meeting was first adverted to
in the
accused's plea explanation. As fully set out above, it was stated in
the plea explanation that the accused summoned Pikoli
to his office
towards the end of 2005 to discuss various serious issues. In brief,
the issues related as far as Ngcuka was concerned,
to Ngcuka's
alleged attempted extortion of a bribe from Ramsay, the display by
Ngcuka of greater interest in mining rights in certain
African
countries rather than in the offences Rautenbach allegedly committed
and the illegal gathering of intelligence and the
involvement with
foreign intelligence agencies by the DSO and Ngcuka and as far as
Pikoli was concerned to the receipt by Pikoli
through his wife of
shares
in Simmer and Jack Ltd. With regard to the issues relating to Ngcuka,
Pikoli's response was
"Oh
it is a murky world'.
With
regard to the issues relating to his or his wife's shareholding,
Pikoli's response was that his wife was his
"Achilles
heef.
In
evidence in chief Pikoli denied that he had ever had a meeting with
the accused at which the receipt of shares by either him
or his wife
had been discussed. He also denied having had discussions with the
accused in regard to an attempt by Ngcuka to obtain
a bribe from
Rautenbach. In cross examination it was put to Pkioli that the
accused
"raised'
the
alleged bribe, the receipt of the shares and the DSO's involvement
with foreign intelligence with him in the accused's office
towards
the end of 2005. Pikoli denied that this meeting took place.
279.
On the evidence the Tidmarsh meeting took place on 19 April 2005.
According to the accused he received the copy of the letter
(exhibit
A26) directed by Ngcuka to Ramsay at that meeting. He added that he
would not have waited six months to raise the content
of the letter
with Pikoii. He stated emphatically that he would have raised it with
Pikoli at the earliest possible time. That
would certainly not have
been in December 2005. Clearly this on its own casts doubt on the
accused's version. When the matter was
revisited in further cross
examination, the accused conceded that he
had
erred when stating that the Ramsay letter had been discussed at the
end of December 2005. He then added that the
"murky
world"
comment
came after he had summoned Pikoli to his office on a second occasion.
On this occasion he showed Pikoli the DVD of the interview
between
Mphego and Agliotti and it was on that occasion that Pikoli made the
"murky
world'
comment.
It should be pointed out that up to that stage there had been no
mention of Pikoli being summoned to a second meeting.
According to
Pikoli the DVD was shown to him in December 2006. It bears repetition
that the plea explanation places the
"murky
world'
comment
at the end of 2005 meeting and not in December 2006, When the matter
was again revisited in cross examination, three meetings
were raised
with the accused. Meeting one, so it was put, was the meeting that
took place in 2005 in the accused's office; meeting
two was the
meeting in Pikoli's office in 2006 and meeting three was the meeting
at which the DVD was shown to Pikoli, The accused
responded that he
did not agree therewith. Meeting one, according to the accused,
included the DVD.
280.
The accused's evidence as set out above is implausible and
contradictory. It is also improbable. There is absolutely no logical

reason for the accused to have shown the DVD to Pikoli in December
2005. As at December 2005 no
allegations
had been made linking the accused to Agliotti. As submitted by the
state's counsel this unsatisfactory evidence would
tend to explain
the accused's strange demeanour where he chose to face the public
gallery rather than to direct his attention on
the court proceedings.
281.
According to the accused, at the meeting in December 2005, from what
he had heard from Pikoli, there was enough information
available for
a serious investigation to be launched against Pikoli. This
investigation he said was not launched. He indicated
that he required
permission from the President to conduct such an investigation. He
approached the President for such permission
but was told by the
President
"that
if we collected more information he would be able to give his
consent...".
This
evidence is simply incomprehensible. Without an investigation no
further information would be forthcoming and no further investigation

was authorised. It is also not clear on what basis the head of SAPS
required consent for SAPS to perform its constitutional function.

Finally, it should be pointed out that whilst Pikoli kept the
President and Cabinet Ministers informed of progress in the
investigation
against the accused, he did not seek permission for the
investigation.
282.
The
accused's counsel did not attack the credibility of Pikoli. Pikoli
was a good witness who testified clearly and logically. He
neither
contradicted himself nor was shown to be an untruthful witness. On
the issues where Pikoli's evidence and the accused's
evidence
diverged, Pikoli's evidence must be accepted and the accused's
evidence rejected as not being reasonably possibly true.
283.
The
second of the big five lies relates to exhibit H6. As background to a
discussion of this document reference must be made to
the accused's
evidence in chief where he testified that whilst he was aware of the
big projects done in his home, his wife attended
to the financial
administration. Even earlier it was put to Friedman in cross
examination that the accused's wife was in complete
control of all
the accounts and that the accused was not the type of person who
involved himself in this issue. Whilst in cross
examination on
household expenditure the accused kept on having regard to a document
that was in his possession. Eventually counsel
for the state asked
the accused for the document. The accused first refused to hand the
document over. When the request was repeated
the accused stated that
counsel for the state must first ask for the document. The document
was requested again and then handed
over. This document is exhibit
H6. It sets out household expenditure for various months. It was
prepared by the accused's wife
in the presence of the accused. The
accused refuted the suggestion, which was in accordance with his
evidence in chief, that the
evidence which he was giving in regard to
exhibit H6 was what he had heard from his wife and that he would not
be able to give
the evidence without the document. The accused
accepted that being the man of the house he knew what was going on
with the finances
and that he only needed exhibit H6 to remind him of
things that had happened a long time ago. This of course deviates
from the
accused's evidence in chief and from that which was put to
Friedman.
284.
The accused was referred in cross examination to page two of exhibit
H6 and asked what he understood by the reference to
"Reasons
for aggregate of R40128.58"
in
the fourth line thereof. He indicated that it referred to money or
cash at hand. The amount of R34187.23 appearing in the next
line was
according to the accused the proceeds of cheques that had been
cashed. He was equally convinced that the
"Reasons
for aggregate of R62919.00"
referred
to in the first line of page 1 of exhibit H6 meant that R62919.00 was
available in cash. The accused was referred to page
3 of exhibit H6
and asked for an explanation for the note
"Reasons
for aggregate of
R39888.55-cheque"
in
the fourth line thereof. The accused responded that it referred to
money that was available. When asked if the word
"cash"
meant
anything, the accused responded that it meant that cheques were
cashed. The accused was then confronted with the schedule
appearing
in paragraph 5.5.3 in exhibit C1 page 44. The accused did not concede
the incorrect evidence given by him but was only
prepared to state
that the identical figures were a huge coincidence. Cleariy the
accused's evidence that he was involved in the
preparation of exhibit
H6 cannot be accepted. He simply did not have any personal knowledge
in regard to its compilation.
285.
The third of the big lies relates to the shredding of documents by
the accused's wife. The accused testified that in the preparation
of
exhibit H6 he checked the household expenditure. This was done
according to the accused by having regard to the till receipts
in
respect of the household expenditure. According to the accused these
till receipts were kept by his wife in a file. He added
that he had
seen the till receipts over the weekend prior to giving evidence. The
till receipts would reflect the details of the
purchase and would
show if the purchase was paid for by cash or credit card. The accused
was asked if he would be able to bring
the till receipts to court. He
replied in the
affirmative.
The next day during cross examination the accused was asked if he had
brought the till receipts referred to the previous
day. He repiied
that he had not but that he had brought something better namely the
credit card statements reflecting the purchases.
It was put to the
accused that the till receipts do not exist. He denied this and added
that he had seen them over the weekend.
The accused was asked to
bring to court the file containing the till receipts the next day.
The next day the accused was asked
if he had brought the till
receipts with him. He replied that he had not. He testified that his
wife had shredded the till receipts
as the credit card statements
constituted better evidence. He had not looked for the shredded paper
to enable him to bring
it to court to provide some
corroboration for his evidence.
286.
The accused's wife was not called as a witness to attempt to explain
her inexplicable conduct in shredding the till receipts.
The only
inference that can be drawn from these events and the failure to call
the accused's wife is that the till receipts did
not exist. The
information set out in exhibit H6 did not emanate from till receipts
but from the credit card statements ultimately
produced by the
accused. This conclusion further negates the accused's contention
that he was personally involved in the compilation
of exhibit H6.
287.
The fourth of the big lies relates to exhibits H5 and H2. Whilst
testifying in chief, the accused described the type of document
that
he would have shown to Agliotti in regard to Kogl. According to him
the document related to information pedlars and may have
included
reference to Agliotti himself. The accused stated that he would check
the document. The accused was asked if the document
was a classified
document. He responded that it was not and that he was trained in
intelligence and that he would not show a classified
document to a
person who was not supposed to see the document. The next day the
accused was shown a document, which he described
as a document dated
8 July 2005 that had been produced by Crime Intelligence for his use
at a meeting of the National Security
Council. The accused stated
that he could not say that this document was the document that had
been shown by him to Agliotti in
regard to Kogl, but that it was a
document along the lines of this document. This document became
exhibit H2. it must be immediately
pointed out that the document had
not been put to Agliotti and that on the face of it the document is
classified as secret. The
accused in cross examination testified that
he had not shown Agliotti exhibit H2 but that he had shown Agliotti a
document containing
information about information pedlars and Kogl
was one of these
information
pedlars. He later added that the document containing this information
would be classified and that he exercised his
power to declassify the
document to enable him to show the document to Agliotti.
288.
The accused was then asked in cross examination if he had recently
seen the document that he had actually shown Agliotti. He
answered in
the affirmative. He stated that the document was contained in his
files at his home. He was asked if he had made it
available to his
legal team. He responded that he had not and that nobody in his legal
team had asked him for the document. The
accused accepted that on
that document there must be a stamp providing for the
declassification of the document. That stamp must
be signed by the
compiler of the document and the word
"secret
wherever
it appears on the document would be scratched out and the signatures
of the compiler and the recipient would appear alongside
the
scratched out word. The accused could offer no explanation why this
document had not been put to Agliotti when he was cross
examined
about the NIE report. The accused was satisfied with his
unsatisfactory response that he did not wish to present the document

at that time.
289.
The accused then changed tack entirely in regard to his evidence in
respect of exhibit H2. From being the document along
the lines of
the document that the accused would have shown Agliotti, it without
fanfare and without so much as a blush or an explanation,

miraculously became the document that was in fact shown to Agliotti.
The accused was then asked if he had declassified the document.
He
responded that he had. When asked where the declassification stamp
appeared on the document, the accused responded that he would
show
the declassification stamp on the original of the document when he
brought it. When asked why he had not made a photocopy
of the
declassified document the accused responded that he would then have
had to make a photocopy of the entire document. It is
not apparent
why the accused could not just have photocopied the same two pages of
the declassified document as he did with H2.
290.
The next day the cross examination in regard to the document shown to
Agliotti was taken up again. A new reason was given for
the
declassification of the document shown to Agliotti. The new reason
was that the accused wanted the document declassified because
he
wanted to use or present the document at a National Security Council
meeting. He was confronted with this explanation. He
accepted
that the National Security Council is a most secret organisation. It
simply does not make sense for a secret document to
be declassified
before being submitted to a most secret organisation. Be that as it
may, the accused now testified that after the
document was
declassified he took it to the National Security Council meeting
where it was discussed. After the meeting he took
the document back
to his office and showed a portion of it to Agliotti. The accused
conceded that had he asked Mphego to declassify
the document so that
it could be shown to Agliotti he would not have consented thereto.
The
next day the accused produced the original of exhibit H2. The
original is exhibit H5a and the copy of exhibit H5a is exhibit
H5.
The document which was tendered as an original document was clearly
not an original. The so-called declassification stamp was
no more
than a date stamp. The date stamp was itself not complete in that it
did not show the day of the month. The compiler of
the document,
Mphego, never signed the document as he should have. The document
only bears the signatures and initials of the accused.
The letter
type and font on portions of H2 and H5a differ. Although the
accused agreed that the differences were obvious
he could not
furnish an explanation therefore. Finally the accused was unable to
explain
how the complete logo was not displayed on the alleged original
document but appears in full on the alleged copy.
292.
Suffice
to say the accused's evidence in this regard is simply unacceptable.
His evidence as set out above displays complete contempt
for the
truth. The inference is irresistible that the accused created or
allowed to be created, after Agliotti had testified, a
document that
would suit the accused's version.
293.
The
fifth of the big lies relates to the dinners and meetings that have
been referred to. The accused in his evidence attempted
to create the
impression that it took Agliotti two years to convince him to meet
with Kebble and his associates. This was simply
not put to Agliotti.
What makes this even more difficult to understand was that Agliotti
testified that he had tried to prevent
a meeting between Kebble and
his associates with the accused. He stated that he did not want
Kebble and his associates to have
easy access to the accused as they
would then no longer need Agliotti's services. Had the accused's
instructions been as stated
in his evidence, it is inconceivable that
his counsel would not have put this to Agliotti. The only inference
that can be arrived
at in this regard is that the accused changed
his
evidence as a result of submissions made during the application for
his discharge. The question was then raised if the accused
had ever
displayed a reluctance to attend dinners or meetings that he was
requested to attend by Agliotti. This interchange led
to the change
in stance by the accused. Additional examples of this have already
been set out above.
294.
Counsel
for the state limited themselves to the big five lies by the accused.
Perhaps their reason for doing so can be ascribed
to the big five to
be found in South Africa's wonderful game reserves. However in
wildlife circles South Africa is often referred
to as the home the of
big six, whales being included amongst the other five. The accused
made him himself guilty of another lie,
which is no smaller than the
five mentioned and should be added to the big five lies, resulting in
the big six lies.
295.
The
sixth of the big lies relates to exhibit A6. In evidence in chief
Agliotti testified that the accused handed him exhibit A6.
He was led
as to the numbering that appears on the right hand top of each page
of the exhibit. This numbering was brought about
by his counsel and
reflects each page as being a distinctive page in a set of eight
pages. This could not have failed to have attracted
the attention of
the
accused.
Agliotti was not challenged in cross examination as to the
composition of this document. Indeed from the evidence in chief
of
the accused it was apparent that the accused regarded the document,
which consisted of eight pages, as a composite whole consisting
of a
statement and an e-mail communication in which the statement had been
forwarded to Plitt. Counsel for the accused put to the
accused
"......
From
the email that accompanied that,.....It is indeed clear that Mr
O'Sullivan sent the relevant statement of the person referred
to
as
Bill
Smith to R Plitt at the NPA office, is that correct/?"
The
accused responded in the affirmative. This evidence is only
reconcilable with exhibit A6 consisting of the entire eight pages.

Later in his evidence in chief, the accused was asked how he had
received exhibit A6. The accused responded that de Beer had sent
a
deputy named Nelson to the office of certain journalists and he
returned with an envelope full of e-mails. Exhibit A6 was one
of the
e-mails in the envelope. Again the accused's evidence is only
reconcilable with exhibit A6 consisting of the entire eight
pages.
296.
Later, in cross examination, the accused testified that he could not
recall having seen the e-mail component of exhibit A6
when he had
received the documents from the journalist. In detailed cross
examination the accused was
required
to furnish an explanation as to why he had made various portions of
the e-mail component of exhibit A6 available to Agliotti.
The accused
responded thereto. This cross examination was based on the
supposition that the e-mail component of exhibit A6 had
been handed
over by the accused to Agliotti.
297.
When counsel for the state reverted to this issue, the accused made a
stunning volte-face, it can only be given justice by
quoting
extensively from the record:
"And
I am not testing your memory, but if you can just tell us again and
the email portion, that is now from p 16 to 19 you,
what was the
reason why you give this portion to Agliotti? — 16 to 19?
Yes,
just have a look please. — / said I did not see 16 to 19.
Ja
but remember, all I am asking you is, why did you give it to
Agliotti, 16 to 19? — If I had not seen it I could not have

given it to him.
No
we cannot go there Mr Selebi. You gave it to him. — / said the
one that I saw is up to, from 12 to 15. That is what I
saw. It ends
with "Commissioner of oath". You never... — No I did
not.
You
never, that portion 16 to 19 you have never seen? — / did not.
COURT:
Let us just get it clear. You never saw it and you never gave it to
Agliotti? --- Agreed. MR NEL: You know Mr Selebi, I want
to be really
fair and I would just want you to think about this. As you stand
there you are convinced you never gave A16 to A19
to Agliotti? —
16, from p 16 to 19...
You
never gave to Agliotti? — / am convinced, because I never saw
it. I never had it.
And
if Agliotti, no not if, he said that you gave it to him, but
that
is a lie, because you did not? — It is untrue.
Now
the document that you remember having given him
that
is now A6 12 to 15. There is no indication that that is
an
email am I right? — No there is no indication.
The
only indication is that it is an unsigned statement that
is
what it is? — Yes.
You
see Mr Selebi, I really have difficulty with your answer now, because
we dealt with this email yesterday and you never yesterday
denied
that you gave it Agliotti. — / never gave it, 16 to 19. If you
are talking about 12 to 15 I say yes. 12 to 15. That
is what
contained in the dossier. That one I say yes, 16 to 19 I did not see.
Before I deal with it, I am putting it to you, you
are changing your
version. — You are wrong.
And
I am putting it to you that the reason you are changing your version
is that it now today suddenly dawned on you
that
that could have been an intercepted email because it was never given
to you. That is why you are changing your version. —
/ have not
and no policeman that are under my command ever intercepted any
email.
The
emails I have and the dossier that I have comes directly from the
media. But this was not part of it, 16 to 19? — 16 to
19 I did
not see.
Let
us just, remember we had, I hope you can remember. We had this
argument about the Kebbie murder yesterday, why would share detail
of
the Kebbie murder with Agliotti, remember that? — Yes.
You
never denied that you gave him the information, you just said that he
knew about it therefore you did not care? Are you changing
today? —
Me and you yesterday had an argument when you asked me if I may
remind that Pikoli asked me about an intercepted
email. I said to you
then that is a blue lie because he never asked me about an
intercepted email because we never intercepted
any email. The email
that I am talking about, the information I had, the document that I
have is documents that came directly from
the media. That is why I
was reading the portion I was reading from this dossier.
Mr
Selebi you are not answering the question because the word
"intercept" is bothering you. That is why you are not
answering.
The question is, can you remember that we
yesterday,
you answered questions on what you shared detail of the Kebble murder
with Agliotti. That is the only question. Can
you remember that? —
/ can remember the
discussion
about the murder with you.
Now
as you stand there, why did I ask you the questions,
where
did I get the information from? — Which
information?
That
you shared information, that you shared detail of the Kebble murder
with Agliotti, where did I get it from? --1 do not know
where you got
it from. I really do not know. Can you remember that argument about
Jos Diedericks? -- Yes.
Where
did I get that from? — / do not know. Can you remember the
argument or the cross examination about a Mr Mazibuko? Where
did I
get that from? — I really do not know where you got the
information from. I am not telling you, I am not

intercepting your communication, I am not looking at that so that I
know you knew Mazibuko from this, I do not know. Mr Selebi
you know
the word intercept got you all worried and you are not concentrating,
because the word intercept is worrying. Why do
you not just listen
to the questions, because I am putting it to you Mr Selebi this is
the worst change of a version that I have
ever seen. — It is
just not true, what you are saying.
It
is
a
change
of a version by educated intelligent person overnight — It is
not true".
298.
The accused's evidence in this regard is unacceptable. He clearly did
not instruct his legal team that he had not received
a portion of
exhibit A6. His evidence vacillated between being in receipt of the
entire exhibit and only a portion of it and between
furnishing
Agliotti with the entire exhibit or only a portion of it. It is
submitted by counsel for the state that the only reason
for the
change in evidence is the suggestion that the e-mail portion of
exhibit A6 had been intercepted by SAPS. In this regard
the content
of an affidavit deposed to by Pruis was put to the accused. Pruis was
present when the documents were handed over to
the accused. In the
affidavit he stated that he had never seen the e-mail portion of
exhibit A6. Pruis' statement as put to the
accused assumes
significance in the light of the suggestion that the e-mail portion
of exhibit A6 had been intercepted. It should
be pointed out that the
accused had intimated that Pruis would be called by him as a witness.
It was in this context that Pruis'
statement was put to the accused.
Despite the intent to call Pruis he was not called as a witness.
299.
There is no good reason not to accept Agiiotti's evidence that the
entire content of exhibit A6 was handed over to him by the
accused.
300.
Whilst the aforegoing were described by the state as the big five
lies and to which one has been added, making them the six
big lies,
there are other portions of the accused's evidence which reflect
negatively on his credibility and that must be examined.
301.
First the accused testified that he never signed subsistence and
travelling claim forms. The accused was referred to such claim
forms
signed by him. The accused was then asked why he had said that he
never signed such a claim. His unsatisfactory response
was that he
never completed such a claim form but that he signed claim forms that
were completed for him. In dealing with one of
the claim forms the
accused stated that he had not signed the particular form and that
his signature had been affixed by way of
a stamp. The accused
explained that because of the large number of documents that had to
be signed in his office a stamp was created
that looked like his
signature. The accused was asked if this was not dangerous. He
responded by saying that he trusted the people
that he worked with.
Clearly on the accused's evidence the impression was created that the
stamped signature was not only used
for innocuous documents. Grove
testified that there was a stamp of the accused's signature. It was
used to sign Christmas cards.
The stamp was made available by the
accused in December, utilised for the purpose of signing the
Christmas cards and then returned
to the accused. So much for the
accused trusting his staff. Grove made it quite clear that a
signature brought about by a stamp
would not be accepted by SAPS's
financial department. As to the accused's evidence that on one claim
form his signature was brought
about by way of a stamp, the accused
brought the stamp to court and the stamp of his signature was affixed
to exhibit H7. The accused
was referred to the claim form on which he
had testified his signature had been affixed by way of the stamp
(exhibit C5 p 1027).
The accused conceded that his signature had not
been brought about by the stamp.
302.
Second, the accused testified that he received a gift voucher from
the Taiwanese embassy. He added that the gift was to his
wife and not
to him. He stated emphatically that the gift was recorded in his gift
register. He stated that he had given instructions
for the voucher to
be recorded in the gift register and that he had checked and it was
in the register. The accused testified that
Grove kept the gift
register. It was manifest from the accused's evidence that the gift
register did in fact exist. Later in cross
examination it emerged
that the instruction to put the voucher in the gift register was
given to a female who worked with Grove.
Grove confirmed that she and
a Ms Bosch administered the accused's office. Grove was unaware of
the existence of any gift register
in the accused's office. Needless
to say none was produced by the accused.
303.
Third, Agliotti had testified that the accused's suit size was, if he
was not mistaken either 58 or 60 depending on the cut
of the suit.
Agliotti was not challenged in respect hereof, in cross examination
the accused denied that his suit size was 58 or
60. He stated that he
never wore a size 58 suit. The accused eventually stated that his
suit size was between a 54 and a 56. it
was put to the accused that
regard being had to the invoices contained in exhibit E, he never
purchased any suits for himself during
the period October 2004 to
February 2008. The accused eventually testified that he had purchased
on account size 56 suits for himself
from Grays and that for some
inexplicable reason his account as placed before this court does not
reflect these transactions. The
accused's was questioned in respect
of his purchases from Boss which are reflected in an invoice dated 29
September 2005 (exhibit
E p 3). The
invoice
reflects the purchase of clothing to the value of R56430.00 after a
discount of R18810.00 had been allowed. As was pointed
out to the
accused these purchases were in an amount greater than his monthly
salary. The accused's response hereto was that he
had been elected
President of Interpol and had to attend the first Interpol conference
as President and that he had to keep up
appearances, hence the
purchase of the Brioni suit which he added is top of the range. The
clear import of the accused's evidence
in this regard is that the
clothing reflected in the aforementioned invoice was for him.
Notwithstanding this the accused testified
that the suits reflected
on the invoice dated 29 September 2005 were not for him as he never
wore a size 58 or 60. So much for
keeping up appearances at Interpol.
However the accused did point out that two shirts, a pair of shoes
and a jacket were also purchased
on that day. The accused's evidence
in this regard was less than satisfactory. It reflects a desperate
attempt to stay away from
size 58 suits as they were reflected on
Agliotti's invoices and constituted clothing which Agliotti said he
gave the accused and
which corresponded to the accused's size of suit
according to Agliotti.
304.
Fourth, the accused testified that he had seen a paid cheque drawn on
his account in favour of the City Council of Tshwane.
The cheque bore
the number 459. It was certainly not part of exhibit CC. The accused
undertook to bring the cheque to court. Subsequently
the accused was
asked if he had brought the cheque to court. He responded that he had
not but that he had found the counterfoil
to the cheque. The accused
was reminded of his evidence that he had seen the cheque, He stated
that he had looked for the cheque
but could not find it. It was put
to the accused as is apparent from exhibit C5 annexure L1 on p 758
and 759 that the cheque had
not gone through the accused's bank
account and accordingly had not been received back from the bank. The
accused was unable to
offer any comment. His evidence that he had
seen the cheque was clearly false.
305.
Fifth, the accused's evidence that he was unaware that Thema was a
state witness. The accused's counsel cross examined Hankel
in respect
of Thema. In the course hereof Hankel was asked if he had seen
Thema's statement. He was further told that Thema was
a state
witness. A portion of Thema's statement was put to Hankel. All this
could not have been lost on the accused. Prior to Thema's
release as
a state witness, the accused arranged a meeting with
Thema
where he discussed the missing Operation Chaser file with him. When
this was raised with him, the accused's immediate response
was to
deny that he was aware that Thema was a potential state witness. In
the light of that set out above this denial has no substance
to it
and must be rejected.
306.
The
accused did not dispute that he is aware of court procedure yet he
proceeded to consult with a state witness. He simply displayed
a
complete lack of respect for court procedure.
307.
At
the end of the day there is not much to choose between the
truthfulness of Agliotti and the accused. Both are strangers to the

truth when it is in their interests to be. What perhaps distinguishes
the mendacity of the accused from that of Agliotti is that
firstly
the accused manufactured evidence that he placed before the court. In
this regard reference is made to exhibit H2 and its
alleged original
exhibit H5a. Little credence if any can be given to the testimony of
a witness who stoops to such low levels.
Secondly, as opposed to
Agliotti the accused did not acknowledge his untruthfulness.
308.
It is perhaps, no wonder, that the accused's counsel did not
endeavour in their heads of argument to argue that the accused's

version on any issue in dispute was reasonably possibly true. They in
essence argued the accused's case on the basis of the state's

evidence. They submitted that they did this on the basis of a worst
case scenario. Considering the quality of the accused's evidence
it
would appear that they had very little option but to argue on the
state's case. Nonetheless in considering the issues in dispute
the
accused's evidence will be considered and a determination will be
made whether the accused's version is reasonably possibly
true.
309.
It is never pleasant to make an adverse credibility finding against a
witness. It stigmatises the witness as a liar and a person
of low
moral fibre. It proclaims to all that the word of the person against
whom the finding has been made cannot, without more,
be relied upon.
It is a stigma that remains forever, it is so more unpleasant to make
such an adverse credibility finding against
the person who stood at
the head of SAPS in regard to events which unfolded whilst he was at
the head of SAPS. Everyday society
in general and the courts in
particular rely on the honesty, integrity and truthfulness of
policemen and women. Mostly this reliance
is not misplaced. In the
case of the accused it was.
He
has, in this regard, not set an example that must be emulated. On the
contrary, members of SAPS must know and value the importance
placed
on their credibility and integrity and conduct themselves in such a
manner as not to tarnish it.
310.
Reference
will now be made to the issues that remain in dispute. In dealing
with these issues, where necessary, further credibility
findings will
be made.
311.
In
considering the issues in dispute generally, the accused's counsel
placed much emphasis on aspects of Agliotti's evidence.
They pointed
to the fact that in respect of payments and the accused's reaction to
the receipt thereof, the state is dependent
on the evidence of
Agliotti. They added that the state had not discredited Agliotti and
that accordingly the state was bound by
Agliotti's evidence and
concessions made by him in the course of his evidence. In this regard
reference was made to Agliotti's
evidence where he stated that he had
consistently stated that he had not bribed the accused and that was
still his evidence. He
added that because of his respect for the
accused he would never have asked him for favours. Indeed he
testified that he had never
received favours from the accused.
Agliotti amplified this evidence by stating that he had not wanted to
compromise his friendship
with the accused in any way. Finally
reference can be had to Agiiotti's evidence that he had not made
payments to the accused or
given the accused gifts on the basis that
the accused should do or refrain from doing anything.
312.
This
submission is ill founded and confuses the role of the witness and
the trier of fact. It is the function of the witness to
place the
relevant facts before the court. It is the function of the trier of
fact to determine the facts and then to apply the
facts to the law
and make the necessary findings. It matters not that Agliotti
testifies that he did not bribe the accused. Such
evidence
constitutes a conclusion of fact. The court is obliged to consider
the evidence and to determine the facts it can accept
as opposed to
the conclusions of fact that Agliotti was encouraged to make. Once
these facts have been determined it must be decided
whether or not
the state has discharged the onus resting on it and proved that the
accused is guilty of corruption. It matters
not how Agliotti
described his conduct.
313.
The
submission is ill founded for another reason. It does not take into
account evidence given by Agliotti where he gives factual
evidence.
Agliotti testified that he
"made
payments to the accused because firstly, we were friends;
secondly
I needed him in my business dealings, I made payments to him and
needed him close to me".
When
asked why he needed the accused, Agliotti responded that he needed
him for purposes of the Kebbles. When asked
"And
you received things in return from him"
Agliotti
responded
"Sure,
I mean he, you know, and it is in my affidavit, in my handwriting
notes that he did help me with three (3) reports or
showed me three
(3) reports"
When
asked about the attendance of the accused at dinners, Agliotti stated
that he initially came along as his friend, but thereafter,
"if
it is deemed that he had to come because of monies given to him, and
you know I did not personally perceive it like that-
314.
The
submission is ill founded for yet a further reason. As will appear
hereunder the accused is charged with corruption and it is
his
conduct and intent that must be determined. Whether Agliotti believed
that he bribed the accused or not is irrelevant. What
has to be
determined is whether the accused contravened the provisions of the
PCCA.
315.
Counsel
for the accused further argued that there was no evidence of any
discussion or of the conclusion of any agreement between
Agliotti and
the accused that the accused would act or not act in a particular way
as a result of payments made to him by Agliotti.
Indeed the accused
testified that there had never been such a discussion.
316.
The accused is charged with a contravention of s 4 (1)(a) of the
PCCA. It creates an offence in respect of
"any
public officer who directly or indirectly, accepts or agrees or
offers to accept any gratification..."
ft
further creates an offence in respect of
"any
person who directly or indirectly, gives or agrees or offers to give
any gratification..."
Whilst
the act criminalises the conduct of both the corrupter and the
corruptee, it clearly and expressly, does not require the
existence
of an agreement between them. The PCCA conforms in this respect to
the common law crime of bribery. In S v Gouws
1975 (1) SA 1
(AD)
it
was held that
"Waar
dit dus die ampsintegriteit is wat beskerm moet word is dit moeilik
om in te sien waarom die amptenaar wat n geskenk
ontvang nie skuldig
bevind sou kon word tensy die gewer van die geskenk bedoel het om
horn om te hoop en dus self ook aan die misdaad
skuldig is nie".
in
the judgment of the trial court in the matter of S v Shaik as
referred to in the judgment of the Supreme Court of Appeal in that

matter as reported in
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA), it was held in regard to
a charge brought in terms of the CA that
"it
would be flying in the face of commonsense and
ordinary
human nature to think that he did not realise the advantages to him
of continuing to enjoy Zuma's goodwill to an even greater
extent than
before 1997; and even if nothing was ever said between them to
establish the mutually beneficial symbiosis that the
evidence
shows
existed,
the circumstances of the commencement and the sustained continuation
thereafter of these payments, can only have generated
a sense of
obligation in the recipient.
317.
In
the result the absence of the conclusion of an agreement between the
accused and Agliotti is not fatal to the state's case. Moreover,

whilst there may be no express evidence of such an express agreement,
the evidence may inexorably compel the finding of such an
agreement
or understanding. This will be considered later but it must be
reiterated that is not a requirement for the state to
secure a
conviction.
318.
Before
attention is given to the issues of payments and gifts and the
benefits that Agliotti allegedly received it should be noted
that
much of the evidence in this regard is the evidence of a single
witness namely Agliotti. S 208 of the CPA provides for the
conviction
of an accused on the evidence of a single witness. In S v Sauls 1981
(3) (SA) 172 (A) at 180 the court considered the
dictum in R v
Mokoena
1932 OPD 79
which was made in regard to the evidence of a single
witness. It was held at 80 that the evidence of a single witness
should only
be relied on where the evidence of the single witness is
clear and satisfactory in every material respect. In Sauls case it
was
held in regard to this dictum that
"There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness
(see the
remarks of RUMPFF JA in S v Webber
1971 (3) SA 754
(A) at 758). The
trial Judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether
it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is
satisfied that the truth
has been told. The cautionary rule referred to by DE VILLIERS JP in
1932 may be a guide to a right decision
but it does not mean
"that
the appeal must succeed if any criticism, however slender, of the
witnesses' evidence were well founded"
(Per
SCHREINER J A in R v Nhlapo (AD 10 November 1952) quoted in R v
Bellingham
1955 (2) SA 566
(A) at 569). It has been said more than
once that the exercise of caution must not be allowed to displace the
exercise of common
sense".
319.
in S v Khumalo & Ander
[1991] ZASCA 70
;
1991 (4) SA 310
(A) the Supreme Court of
Appeal referred to the position of a single witness and made the
following remarks at 327 J:
"Dit
is geykte reg dat die getuienis van 'n enketgetuie met versigtigheid
benader moet word. Normaalweg word die getuienis
van 'n enketgetuie
slegs aanvaar as dit in elke wesenlike opsig bevredigend is of dear
stawing daarvoor is (R v Mokoena
1956 (3) SA 81
(A) op 85-6; S v
Letsedi
1963 (2) SA 471
(A) op 473F; S v Sauls and Others
1981 (3) SA
172
(A) op 180E-G), Stavmg in die sin is 'bevestigende bewysmateriaal
buite die getuienis wat gestaaf word' (Schmidt Bewysreg 3de uitg
op
108). Die stawing
hoefnie
noodwendig
die beskutdigde met die misdaad te verbind nie. Die getuienis van 'n
enketgetuie, soos Holmes AR in S v Artman and Another
1968 (3) SA 339
(A) op 341A-B opgemerk het, 'does not require the existence of
implicatory corroboration; indeed in that event she would not be
a
single witness'".
320.
Attention
will now be given to whether the state proved that Agliotti gave
money and gifts to the accused and whether Agliotti received
benefits
from the accused.
321.
As
far as payments are concerned reference will only be had to payments
where there is corroboration for Agliotti's
evidence
firstly because of the credibility finding made against him and
secondly because in respect of some of the payments he
is a single
witness. As far as the two big payments of R200000 and R120000 are
concerned there is no corroboration for Agiiotti's
evidence in
respect of the payment of R200000. There is potential corroboration
in respect of the payment of R120000.
322.
When
considering the evidence in regard to this payment reference must be
had to Agiiotti's note, exhibit A21. He wrote in regard
to payments
"R300
once".
The
point is made by the accused's counsel that there is only reference
to a once off payment of R300000 and that there is no mention
of
payments of R200000 or R100000 or R120000. This is correct. However
above the notation and in the accused's counsel's hand writing
the
following appears:
"Split
and trace cheques-Martin".
Futhermore
the cheques of R200000 and R100000 are dated 13 December 2004 and 20
December 2004. It will be recalled that when the
note was made
Agliotti did not have access to the cheques or their counterfoils.
323.
Reference
has already been made to the evidence of Agliotti and Muller in this
regard. This evidences places Muller at the scene
of the payment and
could provide corroboration for the payment. In Agiiotti's statement
to the DSO of 11 December 2006 (exhibit
A32), he did not mention that
Muller was present when he handed the money to the accused. Agliotti
was not able to give an explanation
for his failure to do so.
324.
The
first potential corroboration emanates from the counterfoil of the
relevant cheque which has the word "COP' noted on it.
The note
on the counterfoil was brought about by Flint. Agliotti testified
that he assumed that it referred to the accused. It
is necessary to
refer briefly refer to Flint's evidence.
325.
Flint
made a statement to Agiiotti's advocate and attorney on 8 February
2007 (exhibit B3 p 6 and a further statement to Mr G Hardaker
of the
DSO on 23 October 2007 (exhibit B4 p 10).
326.
In
his evidence in chief Flint departed from his 23 October 2007
statement. In respect of the counterfoil of the cheque for R10000

dated 16 June 2004 (exhibit A14 p 27), which bears the annotation
"JSGA",
Flint
stated unequivocally in the affidavit (exhibit B4 p 20 paragraph 21)
that the annotation relates to
"John
Stratton and Glen Agliottr.
In
evidence in chief, when asked why he had said that in the
affidavit,
Flint replied
"The
only 'JS' that came to mind when he was doing this affidavit was in
fact John Stratton, I had been negotiating with him
for some
considerable months and was in contact with him on not a regular
basis, but you know, at least once, twice a month".
When
asked if he could link the
'JS'
to
anything specific he replied
"We
were at that point of time working with John Stratton"
and
"there
was no particular issue that I would tie it to."
327.
Flint
testified that when Agliotti asked for a cash cheque Agliotti would
furnish him with a brief description of the purpose of
the cheque.
Flint would make a note of this on the counterfoil to enable Agliotti
if he ever queried Flint to identify the payment.
That which was
written on the counterfoil was always based upon that which Agliotti
told him.
328.
Flint
in cross examination testified that he had no reason to suspect that
any payments were made to the accused. Accordingly
"JS"
could
not refer to the accused. When the question was again put to him in
cross examination as follows "So
we
can emphatically state to His Lordship that the "JS" there
does not refer to Jackie Selebi"
he
replied as follows:
"Sir,
My Lord I cannot state that, because 'JS', when Glen said to me 'JS'
he could have meant but when I
wrote
it I interpreted it as being, as you know, John Stratton".
329.
In respect of the counterfoil of the cheque for R10000 dated 8
November 2004 (exhibit A15 p 28), which bears the annotation
"COP',
Flint
stated in the affidavit that "The
annotation
relates to a retired policeman who I understand had a car crash."
In
evidence in chief Flint stated that he had linked the payment to a
retired policeman who he thinks was called Bezuidenhout.
He
added that Bezuidenhout had had some kind of serious accident and
that Agliotti had agreed to help him. He now recalls
however that the
policeman came to Maverick's old offices. The cheque in question, he
stated, was made out whilst Maverick traded
from its old premises and
he did not recall the policeman in question coming to the new
offices. Accordingly Flint stated that
his recollection when he made
the statement was incorrect. In cross examination Flint was taxed on
his ability to remember Bezuidenhout's
name. He stated that he was
able to do so because he remembered the name as part of a story. He
testified
"So
in other words this great big story of him being hit by a train at a
level crossing is what stays in my mind and the name
was associated
with that."
When
asked why he did not mention Bezuidenhout's name in the statement.
Flint responded
that
he was answering questions and that question had not been asked of
him. In paragraph 31 of the affidavit of 23 October 2007
(exhibit B4
p 31), Flint however stated explicitly that he could not recall the
name of the policeman concerned. After this contradiction
was put to
him he added that on that day he probably did not remember the name.
Flint suggested that the name could have been given
to him by the
prosecutor during consultation. Flint indicated that the prosecution
team had questioned him on his statement and
had pointed out to him
that if they were in the new building the statement is wrong. Flint
was confronted with Mulier's evidence
that the business had moved to
new premises in September/October 2004. Flint gave convincing
evidence in this regard. He stated
that the premises occupied by the
business were renovated and the business was given three months free
occupation with the lease
of the premises only starting on 1 October
2004. He added that Muller was aware that the lease had expired at
the end of October
2009 but had forgotten the 3 months free tenancy
for the renovations. Despite his evidence of bad memory Flint
recalled that the
policeman came to the old premises and not the new
premises.
330.
In respect of the counterfoil of the cheque for R5000 dated 18
November 2004 (exhibit A16 p29) which bears the
annotation
"COP", Flint stated in the affidavit that the annotation
probably relates to the same policeman as the cheque
referred to in
the previous paragraph.
Reverting
to the cheque for R100000 and the note "COP on the counterfoil
Flint, who had written the word on the counterfoil,
testified that he
had no idea what it meant. He stated in cross examination that he
noted down whatever Agliotti told him in order
to be able to control
it with him later. He added that he decided what was written on the
counterfoil "so he
might
say it is for the Chief or it is for this and I just write "Chief
on it. I would put something down in an effort to enable
him if he
ever queried me on it to identify it, but it was always based upon
what Mr Agliotti had told me".
Notwithstanding
Flint's evidence that he never had reason to believe that any moneys
were paid to the accused it is clear that whatever
Agliotti told him
was sufficient for him to note the word "COP' on the
counterfoil. It is noteworthy that Flint linked the
word "COP on
the two counterfoils referred to above to a policeman albeit not the
accused. On his evidence that would have
been sufficient for Agliotti
to identify the transaction. Agliotti linked this payment to the
accused. Agliotti did testify that
the only other member of SAPS to
whom payments were made was Bezuidenhout.
332.
Flint's
ignorance of the meaning of the annotations on the counterfoils of
the cheques is just not credible. It is impossible to
accept that
Flint did not know more. During the period 5 December 2003 to 31
January 2005 Flint was paid R129200 from the Spring
Lights account.
These payments he says were authorised by Agliotti as he had rendered
services. It must be assumed that the services
were rendered to
Spring Lights. On the evidence the only services rendered were the
preparation and signing of cheques on Agiiotti's
instruction, the
cashing of cheques and the handing of the cash to Agliotti.
333.
The
inference is inescapable that Flint when making the affidavit of 23
October 2007 endeavoured to give an explanation for the
cheque
annotations which exculpated him from any wrongdoing. His evidence in
court was likewise directed at this purpose
334.
In
the result the counterfoil of the cheque for R100000 which reads
"COP" is corroboration for Agiiotti's evidence.
335.
Secondly
Muller's evidence, if credible, constitutes potential corroboration.
The accused's counsel launched a substantial attack
on Muller's
credibility in general and the divergence between her evidence and
Agliotti's evidence in respect of this payment in
particular.
336.
Before
dealing with these attacks it is appropriate for some general
reference to be made to Muller's evidence. Muller made 2 affidavits

during the investigation against the accused. The first affidavit was
made on 8 February 2007 and was drafted by Agliotti's counsel
Hodes
(exhibit B5 p 50). The second affidavit was made on 23 October 2007
at the request of Hardaker of the DSO (exhibit B6 p 52).
337.
After
Agliotti's arrest, Muller was asked by Hodes visit him. Muller was
reluctant to go. She did see him. She told Agliotti that
she did not
ever want to hear him say a word about the case because she did not
want to hear anymore lies and the less she knew
the better for her.
She has accordingly not discussed the case with Agliotti. Muller is
the managing director of Maverick which
today has an annua! turnover
of R40m to R42m.
338.
After termination of their relationship Muller and Agliotti remained
friends. Muller stated that she went overseas with Agliotti
twice
after termination of their relationship. They went to Thailand at
request of Agliotti to try and reconcile. This was not
successful.
Agliotti accompanied Muller once to London, Agliotti continued to
have the use of her office and Muller continued performing

secretarial services for Agliotti. Based on this the accused's
counsel suggested that the relationship between Muller and Agliotti

had not been as completely severed as Muller had testified. There is
no basis for this suggestion. Muller appeared to be a strong
willed
and determined woman. When she testified that she moved Agliotti out
of her home, there can be no doubt that she did just
that. Although
they remained friends the relationship between them was severed.
339.
As far as the general attack on Muller's credibility is concerned
reference was first made to Muller's evidence in respect
of certain
payments that were placed in envelopes with the initials
"JS"
on
them which would leave with the accused. She was asked how she knew
the envelope would leave with the accused. She replied that
she could
see from her office down the passage to the boardroom and when
anybody came in or out of the boardroom she could see
them. She was
then asked
"did
you
see
it"
and
she replied in the affirmative. In cross examination she stated that
she never saw the accused with an envelope. This evidence
may be
construed as a contradiction of her earlier evidence. It depends on
the meaning to be ascribed to the word
"if
to
which Muller referred. Secondly it is
argued
that Muller stated in her statement to the DSO that the accused had
received payments from Stemmet. it is pointed out that
Agliotti
denied having told her that Stemmet had made such payments and that
there is no evidence indicating that Stemmet had
made such
payments to the accused. Clearly there is a divergence in the
evidence of Agliotti and Muller in this regard and factually
there is
no evidence of such payments. That however does not exclude the
possibility of Agliotti telling Muller that such payments
were made.
Thirdly, and of more moment than that which has been referred to thus
far, reference was made to Muller's statement
to the DSO where she
stated that "JS" could have referred to Stratton, but that
because she never saw Stratton she assumed
it referred to the
accused. When asked in her evidence in chief how she knew that "JS"
referred to the accused she replied
that Agliotti had told her and
that after Agliotti had written on the envelopes the accused would
arrive at Maverick's premises.
When asked why it was necessary for
her to have assumed anything and that she could have told the DSO
that she knew who it was
because Agliotti had told her, Muller
responded that
"Except
for we both know the credibility of Mr Agliotti. I never took
anything he told me for fact."
She
added that at the time Agliotti told her what
"JS"
meant
she believed him but there were a lot of other things that Agiiotti
told her that were not correct. Clearly there is a divergence
between
Muller's statement and her evidence in court in this regard. Fourthly
reference was made in regard to Muller, and for that
matter Flint, to
the fact that the DSO had permitted Agiiotti's legal representatives
to take their first statements. This, so
it is submitted, occurred
some months after Agliotti had promised to procure a statement from
Muller and Flint. It matters not
who took the first statement. What
is of importance is whether or not Muller or Flint gave evidence
contrary to what had been set
out in their statements. Fifthly, and
finally, it was submitted by the accused's counsel that regard must
be had to the fact that
Muller had been Agiiotti's fiance for a
number of years, they had travelled overseas after the break-up of
their relationship,
Muller had benefitted from the Spring Lights
account, Agiiotti had stated that he would procure Muller's statement
and that Agiiotti's
legal team, which had assisted Agiiotti in making
a deal with the DSO had provided the statement.
340.
An additional ground can be added to this general attack on the
credibility of Muller. In her statements she never mentioned
that she
removed the sum of R10000 from the sum of R120000 before she put it
in the bag. When asked to explain why it was not mentioned
she
responded that she had not considered it relevant.
341.
it
must also be recalled that Muller testified in chief that the payment
was made in December 2004. In her statements Muller stated
that the
payment was made in October or November 2005. She eventually linked
the date of the payment to the fact that Agliotti
went on holiday to
Mauritius in 2004 and the fact that Kebble was still alive when the
payment was made.
342.
Consideration
has been given to each of the grounds set out above. Taken
individually and cumulatively they are not sufficient grounds
for
Muller's evidence to be rejected. Muller was subjected to intense
cross examination. She repeated her version of the events
relating to
the payment without deviation. She, was notwithstanding the criticism
set out above, a good witness.
343.
There
are major differences between the evidence of the Agliotti and Muller
in respect of this payment to the accused. First on
Agliotti's
version, Flint cashed the cheque and handed the R100 000 in the
offices of Maverick to Muller before Agliotti had arrived
at
Maverick's premises, Agliotti only handed Muller R20 000 to add to
the R100
000.
This is contradicted by Muiler. Muiler testified that Agliotti had
handed her the money which he had taken from his briefcase
and that
he had asked her to check that it amounted to R110000. Second,
according to Agliotti an amount of R120 000 was handed
over to the
accused in the boardroom. Muller is very adamant that only R110
000.00 had been handed over to the accused. Third,
Agliotti made no,
mention of the fact that Muller removed R10 000 from the money that
she had counted and informed him thereof.
On the contrary, according
to Agliotti, he wanted to give as much money he had to the accused.
It was for that reason that he added
R20 000.00. Fourth, Agliotti
testified that the money was paid to the accused because he had
informed Agliotti that he had problems.
Muller testified that the
money was paid to pay for a holiday for the accused and his family.
Fifth Agliotti testified that
he had arrived at Maverick and that
shortly after his arrival the accused arrived. Muller testified that
the accused had arrived
first and that Agliotti had informed her
prior to the arrival of the accused that the accused would arrive
first and that she should
entertain him whilst waiting for Agliotti.
344.
Had Muller and Agliotti conspired with each other to give false
evidence against the accused those differences would have been

avoided. Their very presence, whilst creating
difficulty
in regard to reliability or cogency, gives the evidence credibility.
345.
At the end of Muller's cross examination it was put to her that the
accused denies that he ever received payments from Agliotti.
She
turned her face so that she faced the accused. Looking directly at
the accused she said
"That
is not the truth."
Her
reaction was not contrived. It gave her evidence the stamp of
credibility. Regard being had to ail the criticism of her evidence

that stamp of credibility is justified and accordingly her evidence
in general and in regard to this payment in particular is accepted.

It is accordingly found that Muller's evidence does serve as
corroboration of the payment to the accused. Agliotti testified that

the payment was R120000. Muller testified that the payment was
R110000. Her evidence in respect of the R110000 was convincing and
it
is accordingly held that her evidence is corroboration for the
payment as testified to by Agliotti up to that amount.
346.
Additional corroboration for the state's case in respect of this
payment is to be found in the evidence of Friedman. He testified,
as
is set out above, in regard to the accused's bizarre spending
pattern. For present purposes it is only necessary to state that
in
January 2005 the total amount paid out of the accused's bank account
amounted to R465.35 and in February 2005 to R188.12. No
credible
explanation for this was provided. The accused's wife, who was
proclaimed as the person who was in charge of the household's

finances, was not called as a witness to explain this. The absence of
cash cheques and cash withdrawals, also referred to in Friedman's

report, were not explained.
347.
Further corroboration is to be found in the accused's foreign
currency transactions. Reference will be made to two. The accused

received an advance for a visit to France in the amount of R8537.17.
Notwithstanding this the accused utilised the sum of R13064.15
to
purchase euros for this journey on 3 June 2005. Interestingly enough
and after the visit the accused sold 680 euro at a rand
value of
R5193.90 on 28 June 2005. It is apparent from this exposition that
the accused in effect spent slightly more than his
advance. He was
unable to furnish any explanation for his conduct. Absent an
explanation it appears that the accused was attempting
to launder
money or create an explanation for having excess cash in his
possession. The accused received an advance of
R8954.81.
Notwithstanding this the accused utilised the sum of R21796.65 to
purchase $3152 on 28 July 2005.
After
the visit the accused sold $2237 at rand value of R14020.70 on 19
August 2005. It is apparent that the accused spent slightly
less than
his advance. He was again unable to furnish any explanation for his
conduct. It appears that the accused was attempting
to create the
same impression as set out above.
348.
Finally
additional corroboration is to be found in the accused's relationship
and dealings with Agliotti which will be dealt with
later in this
judgment.
349.
Confronted
with the state's case as set out above, and having due regard to the
poor quality of the accused's evidence, the accused's
denial of
receipt of the payment is not reasonably possibly true.
350.
Regard
being had to all of the above the state has proved beyond reasonable
doubt the accused received the payment at least in the
sum of
R110000.
351.
The
next payment where there is corroboration is the payment of R30000 in
respect of which the cheque dated 28 September 2005 was
cashed. The
counterfoil to the cheque has the words
"CASH
(chief)"
noted
on it. As
already
indicated Agliotti referred to the accused as chief. This serves as
corroboration for Agliotti's evidence.
352.
This
cheque is dated the day after Kebble died. In re-examination Agliotti
stated that on the day after Kebble died he had to identify
Kebble's
body. He did not know where the mortuary was. He went to Nassif's
office. Nassif instructed one of his employees Andre
Burger to show
him where the mortuary was. Whilst driving in the car to the mortuary
the accused phoned Agliotti and asked for
money. The accused's
counsel was given ieave to cross examine Agliotti on this new
evidence. It emerged from this cross examination
that this issue had
not been raised by Agliotti in any of his statements or in his
evidence before his evidence in re-examination.
It was put to him
that from cellular phone records provided by the state no record
could be found of calls from the accused to
Agliotti on the day in
question. The state objected to this question. The state thereupon
showed the accused's counsel the cellular
phone records, where the
calls were reflected, and the question was not persisted in.
353.
It
was pointed out by the accused's counsel that Agliotti only referred
to one payment of R30000 in his hand written notes (exhibit
A21).
That payment was linked to the dinner
to
lobby for support for the accused's election as head of Interpol. It
is common cause that this occurred in September 2004. Accordingly
the
proceeds of this cheque, which is dated 28 September 2005, could not
have been in respect of the Interpol dinner. It is further
suggested
by the accused's counsel that when the state realised the mistake
they alleged two payments of R30000 were made and not
one. The answer
to their submission is that the state referred to both payments of
R30000 in the indictment. The Interpol dinner
is referred to in
paragraph 16 on p 10 and the other payment in paragraph 22 on p 12.
The state contends that the date of the accused's
election as
president of Interpol is a well known fact in the public domain and
is specifically mentioned in paragraph 4 on p 4
of the indictment. In
these circumstances the state could hardly be said to have made a
mistake.
354.
It was finally argued in regard to this cheque by the accused's
counsel that it has been demonstrated clearly in the evidence
that
the proceeds of this cheque of R30 000.00 did not go to the accused
but was utilised by Agliotti for other purposes. It is
submitted that
Agiiotti's evidence illustrates that the only inference to be drawn
is that the proceeds of this cheque was used
as a clearance payment
for a drug transaction that he was involved in. The basis for
this
submission is the content of paragraph 26 of Agiiotti's statement
dated 10 February 2008 (exhibit A36). in that paragraph the
following
is stated:
"The
normal procedure for payment will be that the owner of the
consignment would pay the forwarding and clearing charges.
The money
I used could have come from either the Care Products- or Spring
Lights account. It is more likely that it came from the
Spring Lights
account. Martin Flint who ran the Spring Lights account was not
always aware what the money was intended for. He
only acted on my
instructions and drew cash at my request."
355.
As
previously stated the counterfoil of the cheque reflects
"Chief.
356.
Confronted
with the state's case as set out above and the general corroboration
referred in regard to the payment of R110000, and
having due regard
to the poor quality of the accused's evidence, the accused's denial
of receipt of the payment is not reasonably
possibly true.
357.
Regard
being had to all of the above the state has proved beyond reasonable
doubt that the accused received the payment of R30000.
358.
The next payment in respect of which there is corroboration is the
cheque for R55000 which is dated 12 April 2005. The counterfoil
to
this cheque reads
"cash
GA Chief.
Agliotti
testified that the note on the counterfoil referred to the accused
and that it could not mean anything else. Flint testified
that the
counterfoil is poorly written. He said
"I
think it is Cash GA Chief, but it could be GL Chief, my handwriting,
or GR Chief, I do not know, but I do not recall exactly
what I said
in my statement. GL Chief is the way I interpret it, but I must say
that I had difficulty reading my own handwriting
at that point",
in
Friedman's report the counterfoil is read as
"Cash
GR Chief.
359.
it
is argued by the accused's counsel that in Agliotti's notes that he
made whilst in prison in December 2006, no reference is made
of any
payment of R55 000.00. Furthermore Agliotti never made any reference
to any payment of R55 000.00 to the accused in any
of his various
statements and the state did not make reference to any payment of R55
000.00 in the charge sheet. This is all correct.
Agliotti did however
refer to
"50
at a time 3 times".
360.
In
view of the possibility that the note may not read
U
GA'\
as
remote as this possibility may be, the accused is entitled to the
benefit of the doubt and it is not found beyond
reasonable
doubt that the accused made this payment to the accused.
361.
Finally reference is made to the two payments of R10000 and the one
payment of R6000. The counterfoils of these cheques all
link the
cheques to the accused. Flint originally linked these payments to
another policeman. He changed this in his evidence.
His evidence was
not strong. Perhaps being over cautious it cannot be held that these
payments were requested by Agliotti for the
accused. The counterfoil
of the second cheque of R10000 reads
"CASH
JSGA".
This
serves as corroboration for Agiiotti's evidence. Despite concessions
made by Agliotti and the accused's poor evidence, regard
being had to
the general corroboration referred to above and the accused's poor
evidence the state has succeeded in proving beyond
reasonable doubt
that this payment was made to the accused.
362.
Agliotti testified that he paid the accused $30000 in three payments,
The one payment was made according to Agliotti in the
first class
lounge at the international departure lounge at 0 R Tambo Airport.
The accused denied receipt of the payment. Agliotti
received the
$100000 on the 22 April 2005. In this regard it was put to the
accused that he went to Cyprus for an Interpol regional
conference
from 23 May 2005 to 28 May 2005. The accused received an advance in
respect of the expenses of the trip from the SAPS
of €700 which
was acquired at a cost of R5900.75. On his return to South Africa the
accused's actual expenses were calculated
in the some of R6223.62 and
claimed from the SAPS. This resulted in a net payment of R323.62
being paid to the accused. Included
in the claim was the amount of
508.99 euros or dollars in respect of accommodation. On his return to
South Africa on 28 May 2005
and contrary to his normal practice of
allowing Grove of attending to his foreign currency transactions, the
accused sold $2500
at O R Tambo international airport. This one month
after Agliotti had received the $100000 from Rautenbach. The accused
was asked
to indicate where the dollars had come from. His first
response was to indicate that he would have the foreign currency from
the
Cyprus trip. It was then pointed out to him that the advance of
foreign currency had been in euros. The accused then suggested that

it was an advance form Interpol. To avoid the suggestion that he had
been paid for the same expenditure by the SAPS and Interpol
the
accused stated that the SAPS advance went back to the SAPS and the
Interpol allowance was used. This evidence is simply not
true.
363.
His
conduct amounts to corroboration for Agiiotti's evidence that he gave
the accused US dollars, albeit not in the amount of R30000.
It is
accordingly held that the state has proved beyond reasonable doubt
that Agliotti paid US dollars to the accused.
364.
As
far as gifts are concerned there is corroboration for Agiiotti's
evidence that clothing was bought for the accused's sons. Muller

testified in that regard. When it was put to her at the conclusion of
her cross examination that the accused denied that Agliotti
ever
purchased clothes at Fubu for the accused's children she responded
with conviction and whilst looking at the accused
"That
is a lie".
The
accused did not seek to place the evidence of his wife or his sons
before the court in this regard. In the light of the state's
case,
the accused's denial is not reasonably possibly true.
365.
In
the result the state succeeded in proving, as set out above, beyond
reasonable doubt that the accused received payments and gifts
from
Agliotti to the extent indicated in this judgment.
366.
The
first benefit that will be considered is the so-called UK report.
Hankel testified that he was requested to identify all
reports
that could be found within his environment pertaining to Agliotti. He
added that there were six reports in total according
to SAPS records
where there was either content related to Agliotti or a reference to
Agliotti. These six reports are exhibit A1
to A5 and exhibit D2. This
evidence was not challenged in any way by the accused.
367.
Agliotti's
evidence was clear, he was shown a document by the accused. The
accused asked him to read the document and thereafter
questioned him
about his knowledge and relationship with the names mentioned in the
report. The accused then said "...
that
I was being monitored or my movements were,"
Agliotti
testified that the report that he was shown had a particular
appearance. According to him it bore a coat of arms and
"either
HSM or Her Majesty's customs something to that effect.
It
cannot be disputed that only one of the reports that was placed
before the court, has a coat of arms and the words
"H
M
Customs
and Excise"
in
bold print on it. As to the purpose of being shown the document
Agliotti testified that the accused wanted Agliotti to know that
the
UK authorities were monitoring his movements.
368.
In
cross examination Agliotti was taken to task as to his recollection
of the content of the document that he had
been
shown. The thrust of the attack was that in testifying as to what he
had recalled as being in the document shown to him he
stated that
there was reference to one Cahii and exhibit A1 did not refer to
Cahil. Agiiotti's response was that he had been shown
the document
very fleetingly and later that he did not take a full note of the
document and that the accused would not give him
a copy, despite him
having requested the accused to do so.
369.
It
was argued by the accused's counsel that there is no evidence that
the accused at any stage had a copy of any of the reports
referred to
by the state. The submission is correct. Some reliance is placed on
the inability of Hankel to dispute that the accused
had any of the
reports in his possession. Not too much can be made of this, other
than Hankel does not have knowledge of the accused's
possession of
any of the reports.
370.
Hankel
was an impressive witness. His annoyance that the Operation Chaser
file could not be accounted for in his archives was apparent
and
clearly truthful. He clearly and emphatically placed liability for
the missing file on Thema. As has already been alluded to,
the
accused, who was then the former commissioner of police, and
indicative of his relationship with Thema discussed the missing
file
with
Thema
despite the fact that Thema was at that time stiii a state witness.
The accused was aware that he was not entitled to consult
with state
witnesses. His denial that he knew that Thema was a state witness
cannot be reasonably possibly true. He heard the contrary
in court
prior to his discussion with Thema. Despite this the accused was
prepared to risk consulting with Thema. This clearly
indicates that
the accused realised the importance of the missing file and gives
credence to it being the source of the report
that Agliotti states
was shown to him. Despite all this Thema was not called as a witness.
371.
It
is noteworthy that the Operation Chaser file was booked out by Thema
on 21 April 2006 and Agliotti's evidence was that he was
given sight
of the report in July or August 2006.
372.
As
appears above Pikoli interviewed the accused on 11 November 2006.
Amongst the issues that Pikoli raised was the UK report and
an issue
in respect of an accident. According to Pikoli the accused undertook
to revert to him on the following Monday in respect
of both these
issues. The accused did revert to Pikoli in respect of the accident
issue but failed to do so in respect of the UK
report. Pikoli's
evidence in this regard was unchallenged. In cross
examination
the accused testified that Pikoli did not ask him about the UK
report.
373.
The accused testified in cross examination that during 2006, because
of the allegations in the press against Agliotti, he requested
SAPS
to conduct an investigation into Agliotti and to bring back to him
anything that was concrete. It was later put to the accused
that the
DSO wanted access to the UK reports in connection with Agliotti. The
accused testified that he gave instructions for the
reports to be
made available but made no enquiries as to the content of the
reports. This evidence is improbable in view of his
prior instruction
that he requested SAPS to conduct an investigation into Agliotti.
374.
The UK report, exhibit A1, is not the type of document that the man
in the street would have knowledge about. The document
was at all
times in the possession of SAPS. There is no suggestion that Agliotti
could have gained knowledge of the existence and
the content of the
document from any source other than a source connected to SAPS.
Whilst Agliotti could not recall the content
of the document
completely accurately, his recollection of the content and appearance
thereof is sufficient to establish that exhibit
A1 was the document
that was shown to him.
On
the evidence the only person who could have shown exhibit A1 to
Agliotti is the accused. This conclusion is arrived at
notwithstanding
the comments made in respect of Agliotti's general
credibility and the fact that he is a single witness. As set out
above there
is sufficient corroboration for Agliotti's evidence in
this regard. The accused's denial that he permitted Agliotti to read
the
UK report is not reasonably possibly true.
375.
It
is finally argued that Agliotti would not have benefited by being
shown exhibit A1. It is argued that at the time exhibit A1
was shown
to Agliotti he was already referred to in the press as an
international drug dealer. Accepting this to be so there was
still
benefit for Agliotti in being warned that United Kingdom police were
investigating him. The inference is reasonable that
by showing
Agliotti exhibit A1 the accused warned Agliotti of the interest the
United Kingdom authorities had in him and of the
fact that their
interest was known to SAPS as well.
376.
It
is accordingly found that the accused showed exhibit A1 to Agliotti
for the benefit of Agliotti.
377.
The
second benefit that Agliotti allegedly received from the accused is
sight of the NIE. Reference has already been
made
to the accused's evidence in this regard. It constitutes the fourth
big lie. Suffice it to say the accused's evidence in this
regard
cannot be reasonably possibly true. Ail that can be accepted on the
accused's evidence is that he concedes that he showed
a document to
Agliotti. On his evidence he showed Agiiotti the second paragraph on
the second p of exhibit H5. The reason for doing
this is that he
wanted to show Agliotti the name "Jurgen Kogl". The
accused testified that he was concerned that he
would not remember
the spelling or the pronunciation of the names. The problem with this
explanation is that only the name Kogl
appears in the second
paragraph. The name Jurgen does not appear. Of course there is no
reason why the name Jurgen Kogl could simply
not have been written
down on a piece of note paper. This constitutes still further
unsatisfactory evidence by the accused. More
importantly perhaps, it
should be pointed out that the accused's proclaimed objective in
showing a document to Agiiotti would
have been achieved had the NIE
been shown to Agliotti. As is apparent from the second p of exhibit G
the name Jurgen Kogl appears.
378.
The accused's evidence that he showed a document to Agliotti provides
corroboration for Agiiotti's evidence that the accused
showed him a
document and moreover corroboration that the document had to do with
Jurgen Kogl, All that has to be determined is
whether a portion of
the NIE is that which was shown. Agliotti testified that during 2005
the accused showed him a document which
was pretty thick in size. The
document had a blue covering on its top and bottom. It was opened and
there were possibly two lines
that were underlined. The accused asked
Agliotti if he could identify the person referred to in the two
lines. Agliotti could not
remember the exact wording of the two
lines. They were to the effect that Jurgen Kogl reports that the
Kebbles are paying the accused.
The accused indicated that this
document was an intelligence report that went to the President.
Agliotti referred to this document
as an NIA report because that is
what he perceived it to be. Agliotti also referred to the document as
an NIA report in exhibit
A21. Agliotti did not know who Jurgen Kogl
was. He made enquiries from the Kebbles and Stratton. He was told
that they had entered
into an unsuccessful business venture with Kogl
and there was a strained relationship between them. Agliotti
subsequently informed
the accused of what he had learnt. The accused
was rather upset and stated that he would demand an apology.
379.
Counsel for the accused argue that all copies of the draft NIE were
destroyed at the meeting where it was discussed. This
certainly was
the evidence of Gilder. This is however not devastating to the
state's case as submitted by the accused's counsel.
It is clear on
Gilder's evidence that the NIE would be circulated to the
participants of the meeting three to four days before
the meeting.
The distribution of the NIE before the meeting would permit the
participants to the meeting of making a copy thereof
and the showing
thereof or of the distributed NIE itself to Agliotti. The fact that
the accused was not a participant at the meeting
is also not
destructive of the state's case. The draft NIE was distributed to
Lalla who represented SAPS and who reported to the
accused.
380.
It is correct, notwithstanding Agiiotti's evidence, that the
information that he saw was on two pages of the NIE and not on
one as
testified to by him. His memory may have let him down in this regard
or when Gilder printed exhibit G the format may have
altered slightly
resulting in the information which Agliotti saw being on two pages
rather than one. Agliotti identified the document
that he saw as an
NIA report. He testified as to its content. The state produced a
draft NIE report with similar content. This
cannot be sheer
coincidence.
381.
On
the evidence it is clear that Agliotti saw a document which contained
particular information. The NIE contains that information.
The
accused admits to showing Agliotti a document. Agliotti was aware of
the demand for an apology. The accused's explanation of
what he
showed Agliotti cannot by any stretch of the imagination be regarded
as reasonably possibly true. In the circumstances
there is more than
adequate corroboration for Agliotti's evidence.
382.
It
was finally argued in this regard by the accused's counsel that
Agliotti did not benefit by the accused showing him the NIE.
This
submission is devoid of substance. Assuming that the accused received
payments and gifts from Agliotti and that he at the
very least
attended meetings with the Kebbles as a result thereof (none of which
has yet been found), the accused shared this information
with
Agliotti to enable him and the Kebbles to take steps to protect
themselves.
383.
It
is accordingly found that the accused showed portion of the NIE to
Agliotti to the benefit of Agliotti.
384.
The
third benefit that Agliotti allegedly received from the accused is
the handing over to Agliotti of exhibit A6. The
evidence
in this regard has already been referred to. It constitutes the sixth
lie by the accused. On the evidence, it cannot but
be found that the
accused handed over exhibit A6 in its entirety. Any evidence by the
accused to the contrary is simply not reasonably
possibly true.
385.
It
is submitted by the state that there is a sinister reason for the
change of stance and sudden denial by the accused that the
e-mail
communication was part of exhibit A6 when the exhibit was handed over
to Agliotti. It is suggested that the e-mail communication
was in
fact intercepted. In this regard the following appears from the cross
examination of the accused:
"And
I am putting it to you that the reason you are changing your version
is that it now today suddenly dawned on you that
that could have been
an intercepted email because it was never given to you. That is why
you are changing your version. —
/ have not and no policeman
that are under my command ever intercepted any email. The emails I
have and the dossier that I have
comes directly from the media".
386.
The
accused testified that the document which he had given to Agliotti
had been handed to him by the journalist during the interview

referred to above. After the interview his colleagues who had been
present at the interview took the documents away with them.
A week or
two later, the accused wanted the documents and called for them. It
is clear that the complete exhibit A6 was faxed to
the accused's
office. There is no evidence of any other document except exhibit A6
that was faxed to the accused's office in response
to his request. It
would appear that of all documents in the dossier the accused, on his
evidence, only called for exhibit A6.
Despite this the accused
persisted in his denial that he had handed the complete exhibit A6 to
Agliotti. The accused could offer
no explanation how Agliotti gained
possession of the entire exhibit A6 and conceded that it is highly
unlikely that he could have
received it from anybody other that
himself. It is manifest that the entire document was available within
SAPS and to be more precise
in the accused's office and in at least
one other SAPS office.
387.
There is evidence to support the accused's evidence that the
statement portion of exhibit A6 was part of the dossier. There
is no
evidence to support the accused's evidence that the e-mail
communication portion of the exhibit was part of the dossier.
On the
contrary the accused testified that he could not remember having seen
the e-mail communication portion of exhibit A6 on
the Saturday when
the interview with the journalist occurred. It is in this
context
that the submission that the e-mai! communication was in fact
intercepted was made. What gives this submission substance
is the
fact that the accused on his own evidence had not seen the e-mail
communication portion of exhibit A6. If he had not seen
it when the
interview with the journalist took place, there is no way on the
evidence that he could have called for the document.
388.
It was not disputed by the accused that the statement portion of
exhibit A6 was sent by e-mail to Plitt at the office of
the NPA.
Pikoli testified that in the November 2006 meeting between him and
the accused, he asked the accused about the intercepted
e-mails
between Plitt and O'Sullivan. In regard to the e-mails, Pikoli
testified that the accused admitted that
"they"
do
have correspondence between Plitt and O'Sullivan. His evidence was
not challenged in cross examination. In cross examination
it was put
to the accused that he had never said to Pikoli in November 2006 that
he received the e-mail from the media. The accused
responded that
Pikoli had never asked him. The accused added emphatically that
Pikoli's evidence that he had asked about the
e-mail was a
"blue
lie".
The
accused was then referred to Pikoli's evidence. It was put to the
accused that Pikioli had testified that when asked about the

intercepted e-mail the accused had said
that
we have the e-mail. His answer was "/
am
saying there is no intercepted email from Robin Plitt. So if somebody
asks me about an intercepted email from Robin Plitt my
answer would
be no because that email that we are talking about is not an
intercepted email it is an email that was brought by
journalists
broadly. Not an intercepted thing".
As
appears from the foregoing this evidence is false as the accused
testified that he did not see the e-mail communication part
of
exhibit A6 when he had the interview with the journalist.
389.
It
is not necessary for this issue to be determined. It may however well
be that the accused's bad evidence in regard to what was
shown to
Agliotti can be ascribed to wanting to distance himself from an
intercepted e-mail.
390.
During
cross examination Agliotti stated that when handing exhibit A6 to
him, the accused stated that it constituted proof that
O'Sullivan was
behind the media campaign and that he should hand it to his lawyer so
that he can take the necessary legal steps.
He later accepted in
cross examination that it was not handed over because of any payments
made or gifts given by him to the accused,
but to resist the
so-called improper media campaign. The conclusion made by Agliotti as
to the reason why exhibit A6
was
handed over is irrelevant. His evidence as to what the accused said
when the exhibit was handed over must be taken into account.

Accepting that the accused regarded exhibit A6 as constituting proof
that O'Sullivan was behind the media campaign and that he
said that
Agliotti should hand it to his lawyer, by giving it to him he still
gave benefit to Agliotti.
391.
The reasons the accused furnished for the disclosure of exhibit A6
are so weak that they cannot be reasonably possibly true.
Although he
masked his reasons for disclosure, regard being had to the content of
the document and the time of its disclosure,
indicate as the only
reasonable inference that the accused must have intended to warn
Agliotti of a DSO investigation and give
him details of an
investigation wherein Agliotti was implicated whilst the Paparas bail
application was proceeding. This can only
be construed as a benefit
which Agliotti derived out of the relationship between htm and the
accused.
392.
It was further submitted on behalf of the accused that the content of
exhibit A6 was already in the public domain and had been
reported on
in the press. Based on this submission, it was argued that the
handing over of exhibit
A6
cannot be construed as unlawful. It cannot be argued, nor was it
suggested, that exhibit A6 was available to Agliotti, What appeared

in the Sunday Independent was but a small portion of that which
appeared in the statement and the covering letter. The content
of the
e-mail was not referred to. Clearly Agliotti benefitted by being
placed in possession of all the documentation referred
to including
the e-mail.
393.
The fourth benefit that Agliotti received was his ability to secure
the attendance of the accused at dinners and meetings.
394.
It was Agliotti's evidence that he arranged the meetings or dinners
between the accused and the Kebbles and their associates,
between the
accused and Tidmarsh, the accused and Nassif when the Jumean issue
was raised and the accused and Varejes, The accused's
counsel did not
challenge Agliotti in respect hereof. After hearing the application
for his discharge being argued, the accused
advanced a different case
to the case his counsel had conducted in this regard. Firstly, he
resisted Agliotti's request to meet
with the Kebbles for two years.
Secondly, he called for the meeting with Tidmarsh and thirdly Nassif
arranged the Jumean meeting
directly with him. This
evidence
was simply not true and clearly could not have been his instructions
to his legal team. It is inconceivable that the accused's
"new"
evidence
would not have been put to Agliotti and Sanders. This change in
stance by the accused was deliberate and was done in an
attempt to
avoid the inference that access to him could be gained through
Agliotti. In the result, the false evidence reinforces
the inference
that the accused could be made available through Agliotti. This in
fact was the reason why Rautenbach paid Agliotti
$100000 after
originally refusing to do so. As Rautenbach put it Agliotti had at
least managed to raise Rautenbach's issues with
the accused. This was
valued at $100000.
395.
It is inconceivable that the accused would have been wilting to be in
the company of the Kebbles and their associates let alone
have dinner
with them. The accused was aware of the content of the interview
which was held on 28 August 2003 between Mphego and
the accused. He
therefore knew that the Kebbles were subjected to police monitoring.
In addition he knew there were discussions
between Agliotti and the
Kebbles relating to the payment of $1.5m to him. He had seen and
heard this on the DVD recording of the
meeting of 28 August 2003.
Despite all this he, as the highest officer in the SAPS, was prepared
to be in their company without
even another member of SAPS present.
The accused, who testified that he was trained in intelligence, and
who is not naive, would
not have exposed himself to the obvious risks
of being in the company of the Kebbles, unless he was not in a
position to refuse
the request.
396.
It was suggested to Agliotti and accepted by him that at these
meetings general conversation took place along the lines of

friendship and general political discussions. The accused however had
it differently. His evidence was that he had
"demanded"
the
meeting with the Kebbles after he had received an affidavit from
Kebbie so that he could discuss the allegations made in the

affidavit. These allegations related to the arrest of Roger Kebbie at
O R Tambo International Airport by the SAPS in the presence
of
Goidblatt. By reason of Goldblatt's presence it was suggested that
SAPS
"were
in cahoots"
with
him, According to the accused he was able to explain that the arrest
was not at the behest of Goidblatt but it was a police
operation as a
result of alleged insider trading. Subsequent meetings related to
general political issues.
397.
It appears from Agiiotti's evidence that he had handed the
affidavit to the accused. Subsequent to this the accused
arranged
a meeting with representatives of the Kebbles and Mphego and Lalla.
Agliotti in fact referred to a letter in his evidence
and not an
affidavit,
398.
it
is inconceivable that the head of SAPS would involve himself in the
political education of Kebbie and his associates. But that
is what
Agliotti says that they did and what the accused says that they did
from the second meeting. Agiiotti's evidence that the
Kebbles
insisted on meeting the accused has the ring of truth to it. They
would want to see tangible proof of the accused's relationship
with
Agliotti. Agiiotti's reluctance to facilitate such a meeting also has
the ring of truth to it. He stated that he did not want
the Kebbles
to have easy access to the accused because they would then no longer
need Agliotti or his services. Agliotti was streetwise
enough to
appreciate this.
399.
The
accused's evidence in regard to the Kebbie meetings is not reasonably
possibly true. These meetings were arranged by Agliotti
and attended
by the accused. They were not attended out of friendship but because
the accused was obligated to go by reason of
the payments made to him
by Agliotti.
400.
The same applies with regard to the Tidmarsh meeting and the Nassif
meeting at which the Jumean issue was discussed as well
as the other
meetings referred to by Sanders.
401.
The Tidmarsh meeting had added benefits. Rautenbach through Tidmarsh
was given information to enable him to comment on a proposed
letter
playing on government concerns that would not in the normal course
have been be available to him. The accused attended this
meeting, on
his evidence to obtain confirmation of corruption by Ngcuka. He would
have it that he did this alone. It is so improbable
that it can be
rejected on the face of it as not reasonably possibly true.
402.
The Kya Sands operation is a cause of concern. The accused appears to
have been the only person in SAPS in possession of all
the relevant
facts and in particular of Agliotti's role. At the very least when
the accused read the motivation for the reward
of R500000 to Stemmet
he must have realised that it was factually incorrect, it did not
refer to Agliotti's role and it may, by
reason thereof, have
exaggerated the role played by Stemmet. The accused was also aware
that Agliotti had enquired whether he would
be paid a reward. Yet
despite all this the accused authorised the payment of R500000 to
Stemmet. Stemmet in turn subsequently paid
R100000 to Agliotti. There
is no evidence of the accused playing any role in the payment by
Stemmet to Agliotti. Finally no prosecutions
flowed from this
operation. On the evidence the Kya Sands operation leaves a bad taste
in the mouth. It cannot be held however
that the state has proved
that Agliotti gained any benefit from it.
403.
in
the result the state has succeeded in proving beyond reasonable doubt
that Agliotti received benefits from the accused.
404.
As
indicated above there is no evidence of an agreement between the
accused and Agliotti for benefits to be given to Agliotti in
return
for payments. On the evidence it is clear that such an agreement or
understanding must have existed. It did not have to
be expressly
concluded. At the very least it came into existence over a period of
time. The accused must have known the adage that
there is no such
thing as a free dinner.
405.
Reference
has already been made to the accused's plea explanation. From
paragraph 5 thereof to its conclusion the accused sets out
his
contention
"that
the prosecution
against
him is not bona fide but was instituted with an ulterior motive..."
In
the last paragraph of the plea explanation the accused states that
"the
case against him was manipulated with male fide intentions in an
attempt to discredit him for the reasons as set out above
and to
ensure the continued existence of the DSO."
The
accused's contention was based on three arguments. First that the
accused was targeted because of his views on the DSO
!
s
integration into the SAPS. Second that he was targeted because he
received information in the latter part of 2005 relating to
Ngcuka
whilst he was the National Director of Public Prosecutions. The
source of the information was in essence the content of
the letter
from Ngcuka to Ramsay. This letter is exhibit A26. Third that the
accused was targeted because of the corruption allegations
relating
to Pikoli.
406.
As far as the second argument is concerned it was never developed by
the accused. There exists no suggestion; on the record
that Ngcuka
influenced his prosecution in any way. It is unclear when, how and
who Ngcuka must have influenced to initiate the
investigation and the
decision to prosecute the accused. The accused failed to even suggest
that Ngcuka knew that he was in possession
of the Ramsay letter. It
Is furthermore unclear why Ngcuka would, in 2006, pursue the accused
because of a letter dated 12 June
2000. It is all the more confusing
since this supposedly occurred at a time when he was no longer the
National Director of Public
Prosecutions. Furthermore, the
allegations of Ngcuka attempting to solicit a bribe proved to be
false. There is also no evidence
of Ngcuka exerting any influence in
the DSO in general and on McCarthy to proceed with the
"campaign"
against
the accused. Accordingly this argument need not be considered any
further.
407.
As far as the third argument is concerned its foundation is the
meeting to which the accused alleged he summoned the accused
to at
the end of 2005. The evidence in regard hereto was dealt with when
the facts relating to the accused's first big lie was
set out. No
point would be served in rehashing it. Suffice it to say this meeting
simply did not take place. This finding is of
significance in the
assessment for the accused's contentions. On the accused's version
after this confrontation the letter of
Advocate de Beer dated 24
January 2006 was sent. This tetter, so it is contended by the
accused, started the investigation against
the accused. It has
already been found that the meeting relied upon by the accused did
not take place. There can accordingly be
no taint in the motive
of
sending the letter of 24 January 2006. Furthermore the evidence
established that that letter did not initiate the investigation

against the accused. The letter requested the DSO to become involved
in the investigation of the Kebble killing. The reason for
the
request was the accused's strange behaviour at a police briefing in
respect of which Roeland testified and the fact that the
retention of
telephone billing records is time limited and if not accessed within
the limited time will result in them being lost
to the investigation.
Accordingly this argument need not be considered any further.
408.
What
remains is the argument that the accused was targeted because of his
views in connection with the DSO's integration within
the SAPS. The
basis for this argument is the contention that the DSO commenced
their investigation against the accused on receipt
of the letter from
Advocate de Beer. This is incorrect. The investigation into the
Kebble killing commenced with that letter. The
framework of the
investigation is set out in the evidence of Pikoli and Leask. There
is no reason why their evidence should not
be accepted.
409.
Further
as to the argument that the accused was targeted the ultimate
decision to prosecute the accused was taken
by
the review committee established by Mpshe. It is not suggested that
any extraneous issues that may have existed prior thereto
played any
role in the decision to prosecute. It is also noteworthy that despite
the setting aside of the warrant of arrest and
the suspension of
Pikoli the accused placed no evidence before the court that he had
articulated to anybody that he had been targeted
because of his views
in regard to the placing of the DSO. A chronology of the relevant
facts is also against the accused's argument.
The Khampepe
Commission completed its findings in 2005. It recommended the
continued existence of the DSO. As Leask put it
after the commission
there was clarity as to the placement of the DSO and how the DSO and
the SAPS were to work together. Thereafter
the investigation
continued as set out above culminating in a decision to prosecute the
accused. In these circumstances there is
no merit in this argument
either.
410.
The accused's counsel advanced a further argument in regard to the
trial. The basis of the argument is the requirement of the

objectivity of the prosecution as an integral part of a fair trial.
This argument was not adverted to in the accused's plea explanation.

They developed this argument by referring to s 34 of The Constitution
which
provides
that everyone has the right to a fair trial. They then referred to s
165 of The Constitution which provides that the courts
must apply the
law impartially. It is then submitted that one of the most basic and
important rights which the court must enforce
is the right of a fair
trial of an accused. They then refer to s 179(4) of The Constitution
which provides that national legislation
must ensure that the
prosecuting authority exercises its functions without fear, favour or
prejudice.
S 32
of the
National Prosecuting Authority Act, 32 of 1998
provides that a member of the Prosecuting Authority shall serve
impartially and carry out his or her functions in good faith.
411.
In developing this argument reference was made to Shabalala v
Attorney-General, Transvaal: & Another
1995 (1) SACR 88
(T) and
the unreported judgment in Bangui! & Another v The Deputy
National Director of Public Prosecutions & Others in
the North
Gauteng High Court (Case Number 17709/2006). In the latter judgment
it was held that a prosecutor who conducts a prosecution
without
fear, favour or prejudice is seen as an integral part of a just
criminal prosecution. Reference was finally made to Smyth
v
Ushewokonze and Another
1998 (2) BCLR 170
(ZS) at 174 where it was
held that
"It
is specifically alleged against the first respondent that he has
involved himself in a
personal
crusade against the applicant and that he lacks the objectivity,
detachment and impartiality necessary to ensure that the
State's case
is presented fairly. It is said further, that the first respondent
has exhibited bias against the applicant. Before
considering the
particular features of the first respondents conduct upon which
reliance is placed, it is as well to outline what
society expects of
a prosecutor. A prosecutor must dedicate himself to the achievement
of justice (see R v Banks
[1916] 2 KB 621
at 623). He must pursue
that aim impartially. He must conduct the case against the accused
person with due regard to the traditional
precepts of candour and
absolute fairness. Since he represents the State, the community at
large and the interests of justice in
general, the task of the
prosecutor is more comprehensive and demanding than that of the
defending practitioner (see R v Riekert
1954 (4) SA 254
(SWA) at 261
C-E). Like Caesar's wife, the prosecutor must be above any trace of
suspicion. As a "minister of the truth"
he has a special
duty to see that the truth emerges in court (see R v Riekert (supra)
at 261 F-G; S vRija and Others 1991 (2)
SA
52 (E) at 67
J-
68B).
He must produce all relevant evidence to the court and ensure, as
best he can, the veracity of such evidence (see S v Msane
1977 (4) SA
758
(N) at 759 A; S v N
1988 (3) SA 450
(A) at 463 E). He must state
the facts dispassionately.
If
he knows of a point in favour of the accused, he must bring it out
(see S v Van Rensburg
1963 (2) SA 343
(N) at 343 F-G; Phato v
Attorney-General, Eastern Cape and Another
1994 (2) SACR 734
(E) at
757 d). If he knows of a credible witness who can speak of facts
which go to show the innocence of the accused, he must
himself call
that witness if the accused is unrepresented; and if represented,
tender the witness to the defence."
412.
The
accused's counsel argue that any reasonable suspicion that the
prosecutor has an interest in the outcome of the case, or has
lost
his or her impartiality, or is acting in bad faith will be an
infringement of the accused's right to a fair trial. They add
that it
is the court's duty to ensure that criminal trials are conducted
according to these principles.
413.
Against
this background reference is made to aspects of the DVD recording of
the meeting of 7 January 2008. Firstly they point out
that Agliotti
accepted that but for one or two issues what he said in the interview
was correct. They then refer to a portion of
the recording where
Agliotti stated
"Yah,
they said: We targeted you and Selebi in the press and we had to
tarnish you and make you look as bad as we could to
bring down
Selebi".
In
his evidence in chief, Agliotti
was
referred to the affidavit which he deposed to on 4 January 2008
(exhibit A23). In that affidavit he stated that he was targeted
with
the accused during the period March 2006 until deposing to the
affidavit on their own admission by the DSO and the NPA. He
stated in
evidence that that was his own belief and perception. Counsel for the
accused then referred to a further portion of the
recording and made
the submission that it is clear from that portion that the DSO
manipulated the evidence by suggesting to Agliotti
to make statements
against the accused that were not true. If there was any manipulation
of evidence it was by the DSO and not
the prosecutors. It is clear on
the evidence that Agliotti's first statement was prepared by his
legal representatives. The second
statement was approved by
Agliotti's legal representatives. It is difficult to see in those
circumstances how words could have
been put into Agliotti's mouth.
Counsel for the accused then referred to a passage in the recording
where Agliotti stated that
he received the money from JCI
legitimately and that he paid it out on their instruction and Nassif
recieved the money. It is argued
that this destroys Agliotti's
version that he received money as payment for services. Some of the
money may well have been paid
to Nassif. It is clear on the evidence
that the money in the Spring Lights account was controlled by
Agliotti and Flint. Counsel
for the accused referred to yet
another
passage in the recording where Agliotti said that members of the DSO
kept on telling him to take the deal. Again the complaint
lies
against the DSO as opposed to the prosecutors. In any event it is
difficult to comprehend how Agliotti who had legal representation

throughout could be intimidated.
414.
None
of the aforegoing, taken individually or cumulatively results in the
conclusion that the prosecutors had acted in a manner
which resulted
in the accused not having a fair trial. It has already been pointed
out that the state did not obtain a statement
from Agliotti without
the assistance of his legal representatives. The prosecutors only
consulted with him two weeks before the
trial. Prior to the
consultation there was no meeting between Agliotti and the
prosecution team without Agiiotti's counsel present.
415.
The
accused's counsel then referred to the evidence of Mrwebi. His
evidence has already been set out herein. He testified that the

Khampepe Commission caused a lot of panic within the DSO. McCarthy
instructed Mrwebi and other regional heads that to make an impact

before the national management of the DSO makes their submission to
the Khampepe Commission they should ensure that they arrest
as many
policemen as possible. McCarthy did not
testify
during the trial. There is no reason not to accept Mrwebi's evidence,
subject to the caveat that McCarthy's version in respect
hereof has
not been heard. This is an unfortunate statement and must be and is
deprecated. It is not clear however how it impacts
on the
independence of the prosecutors in this trial. The Khampepe
Commission was over before any steps were taken against the
accused.
416.
Mrwebi
also testified in regard to the meeting on 25 June 2007 of the top
management of the DSO which was convened after the African
National
Congress's policy conference on 18 July 2007. What occurred at that
meeting has already been set out fully herein. According
to Mrewbi it
was stated at the meeting that the project bad guys (which referred
to the accused) was very important for the DSO
and that it actually
meant life or death for the DSO. Discussion ensued in regard to
strategies to maintain the separate existence
of the DSO.
417.
Reference
was also made to the evidence of Mokotedi which has been fully set
out above. The accused's counsel submit that the significance
of
Mokotedi's evidence is the fact that there was unlawful conduct by
senior members of the DSO relating to their dealing with
the secret
fund used for payment of informers (the C-Fund).
418.
All
that has occurred in regard to Mokotedi's evidence is that one senior
member of the DSO, one Ledwaba, has been prosecuted in
regard to
this. His trial is still pending. No other prosecutions have been
instituted. At the beginning of 2005 the accused stated
at a meeting
that he was about to arrest senior DSO members because of their abuse
of the C-fund. It is suggested that the letter
dated 24 January 2006
which was written by Advocate de Beer was the reaction thereto. It
has already been indicated that there
is no basis for this
suggestion.
419.
In
the result it cannot be held that there was anything improper about
the conduct of the prosecutors in this matter. The words
of Harms DP
in National Director of Public Prosecution v King
[2010] ZASCA 8
(8
MARCH 2010) bare repetition: {[5]
....Courts
should further be aware that persons facing serious charges - and
especially minimum sentences.... One can add the tendency
of such
accused instead of confronting the charge, of attacking the
prosecution."
420.
In
any event the accused would not only have to establish an
infringement of his right to a fair trial, but also that the
infringement
was of such a nature that he did not have a
fair
trial. Assuming, without so finding, for present purposes, that the
accused's right to a fair trial was infringed, it has not
been
established that the infringement was of such a nature that the
accused did not have a fair trial.
421.
After having considered the accused's contentions in regard to a fair
trial, it is apposite to mention certain issues. First
at the end of
August 2007 the decision was taken to prosecute the accused. A
warrant for the arrest of the accused and a search
warrant in respect
of the accused's home and offices were applied for and granted.
Thereafter Pikoli was suspended. Mpshe was appointed
to succeed
Pikoli in an acting capacity. On application the warrant of arrest
was cancelled and, after an unsuccessful application
for the
cancellation of the search warrant, the search warrant was not
utilised. These issues were all referred to in the evidence.
The
reason for this conduct was not established nor is it the task of
this court to determine the reason. Suffice it to say, without
so
finding, and it is stressed without so finding, that interference
with the prosecution process finds no place in our democracy.
Second,
there appears to have been a flurry of activity after the review team
appointed by Mpshe made its decision known to proceed
with the
prosecution of the accused. This
included
the preparation of the affidavit of 4 January 2008, the meeting at
the Balalaika Hotel that night at which Manzini and
Fraser of the NIA
and Mphego of SAPS were present and the meeting at the Villa Via
hotel on 7 January 2008 with Mphego which was
recorded. It would
appear that it is more than coincidence that this activity occurred
after the review committee's decision was
made known and would appear
to be designed to have an impact on the prosecution of the accused.
This conclusion is reinforced by
the fact that the affidavit deposed
to by Agliotti on 4 January 2008 was faxed to the offices of the
accused's legal representatives
on 5 January 2008 and utilised in the
urgent application of the accused that was brought on 8 January 2008.
The reason for this
flurry of conduct was not determined nor is it
the task of this court to determine it. Suffice it to say, without so
finding, and
it is stressed without so finding, the activity appears
to have been designed to assist the accused and in making available
the
affidavit did assist the accused. If that is indeed so and in so
far as a member of SAPS and another government agency were involved

therein it is to be deprecated. Third, on 8 January 2008 the lead
prosecutor was arrested. A week later the case was withdrawn
and has
not been reinstated. Save for the fact that the arrest did not relate
to the C-fund and that according to Mokotedi the
SAPS are
still
investigating the matter, no additional evidence was placed before
the court in regard to this arrest. It would not be correct
to
comment on the arrest, other than to note its timing and to express
the hope, perhaps a forlorn hope, that the arrest was not
designed to
embarrass the prosecution. It should also be noted that some one and
a half years have passed since the arrest of the
prosecutor and the
investigation is still not completed. Fourth, the affidavit which
Mrwebi deposed to as part of a top secret
investigation became an
annexure to the application brought by the accused. Mrwebi was unable
to advance an explanation for this.
Suffice it to say that someone
who was in receipt of the affidavit which Mrwebi regarded as top
secret made it available to the
accused.
422.
In
the result having considered all the evidence and the arguments
advanced by counsel for the state and the accused the accused
is
found guilty of corruption in contravening
s 4(1)
(a) of the
Prevention and Combating of Corrupt Activities Act, 12 of 2004
.
423.
As
far as count two is concerned it is argued by the state that the
sharing of exhibit A6 by the accused with Agliotti, the accused's

conduct in regard to the Kya Sands matte and the showing of the NIE
to the accused constitutes defeating or obstructing the ends
of
justice.
424.
As
far as the sharing of exhibit A6 and the NIE is concerned, they
represent some of the benefit which Agliotti received by reason
of
his corrupt relationship with the accused. A conviction of defeating
or obstructing the ends of justice in respect thereof would
amount to
duplication of convictions. See in this regard S v Radebe
2006 (2)
SACR 604
(O) and S v Pokone
2008 (1) SACR 518
SCA.
425.
As
far as Kya Sands is concerned it is argued on behalf of the state
that the accused's conduct in allowing a distortion of the
facts had
the effect that the SAPS not only paid an exorbitant reward to
Stemmet but also lead to false information being provided
to motivate
Stemmet's claim. It is argued that it is clear from the motivation
that SAPS was not in possession of the true facts
but that the
accused was.
426.
Accepting
the facts postulated by the state it is not apparent how such conduct
constitutes defeating or obstructing the ends of
justice. Obstructing
the ends of justice takes place when the proceedings are impeded or
interfered with. In regard to Kya Sands
there were no proceedings
that could be impeded or interfered with.
427.
In
the result the accused is found not guilty on count two.
428.
In
summary:
428.1
The
accused is found guilty of corruption in contravening
s 4(1)
(a) of
the
Prevention and Combating of Corrupt Activities Act, 12 of 2004
.
428.2
The
accused is found not guilty on count 2. interfered with. In regard to
Kya Sands there were no proceedings that could be impeded
or
interfered with.