S v Agliotti (SS 154/2009) [2010] ZAGPJHC 129; 2011 (2) SACR 437 (GSJ) (25 November 2010)

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[2010] ZAGPJHC 129
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S v Agliotti (SS 154/2009) [2010] ZAGPJHC 129; 2011 (2) SACR 437 (GSJ) (25 November 2010)

REPORTABLE
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO
:
SS 154/2009
DATE:
25/11/2010
In the matter between:
THE STATE
and
NORBERT
GLENN
AGLIOTTI
.............................................................
Accused
______________________________________________________________
J U D G M E N T
______________________________________________________________
KGOMO, J
:
[1] At the close of the State case hereinafter a long and/or
protracted hearing, the accused herein is applying for his discharge

in terms of section 174 of the Criminal Procedure Act, 1977 (Act 51
of 1977), as amended (the
Criminal Procedure Act).
[2
] The basis of the application is:
that the accused did not
receive a fair trial in that the prosecution, while in possession
of statements and other evidential
material, failed or neglected or
refused to act in accordance with their duty or legal obligation to
make same available to
the court and/or the defence, as well as
manipulated or attempted to manipulate the witnesses’
evidence so as to ensure
that they testified in chief about matters
that were not covered by their statements, more particularly, those
statements that
the witnesses made in terms of
section 204
of the
Criminal Procedure Act, thereby
rendering the whole process
unconstitutional and the trial unfair; and/or
that the State has not made out
a
prima facie
case against the accused at the close of its case and that, to put
the accused on his defence when there is no evidence on
record upon
which a person, acting carefully, can convict the accused, would be
tantamount to making or causing him to make
a case against himself
where none existed before.
[3] Both the defence and the
prosecution have submitted copious and comprehensive heads of
argument and I am indebted to them for
the efforts they put in to
compile same. Counsels on both sides, Adv L Hodes SC on behalf of
the defence and Adv Dakana on behalf
of the prosecution also argued
and submitted
viva voce
for and against the granting of the application, accentuating points
in their heads they reckoned were important or in addition
to the
points mentioned in the heads.
[4] The prosecution team
consisted of Adv Dakana, duly assisted by Advocates Gcaleka and
Mashiane from the Gauteng Director of Public
Prosecution’s
Office (DPP) in Johannesburg and the defence was handled by Adv L
Hodes SC duly assisted only at the arguments
stage by Adv Mokotedi.
[5] The indictment herein sets out the following four (4) charges
against the accused:
Count 1
– Contravention
of section 18(2)(a) of the Riotous Assemblies Act, 1956 (Act 17 of
1956) as amended (the Riotous Assemblies
Act) namely, conspiracy to
murder Mark Bristow, Jean Daniel Nortier, Mark Wellesley-Woods and
Stephen Mildenhall; the allegations
being that during or about
July to August 2005 and at or near Rondebosch in the district of
Cape Town as well as at Illovo
and Inanda in the district of
Johannesburg and/or at places unknown to the prosecution, the
accused conspired with Roger Brett
Kebble, Clinton Ronald Nassif,
Michael Donovan Schultz, Nigel Mc Gurg Faizel Smith and certain
other persons whose particulars
are unknown to the State, to aid or
procure the murders of the said Mark Bristow, Jean Daniel Nortier,
Mark Wellesley-Woods
and Stephen Mildenhall;
Count 2
– Attempted
murder of Stephen Mildenhall, the allegations being that upon or
about 31 August 2005 and at or near Claremont
in the district of
Cape Town, the accused did unlawfully and intentionally attempt to
kill Stephen Mildenhall by shooting him
with a firearm(s);
Count 3
– Contravention
of section 18(2)(a) of the Riotous Assemblies Act, No. 17 of 1956 –
conspiracy to murder Roger
Brett Kebble; the allegations being that
during the period August to September 2005 and at or near Illovo
and Inanda, in the
district of Johannesburg and/or at places
unknown to the State or Prosecution, the accused conspired with the
said Roger Brett
Kebble, Clinton Ronald Nassif, Michael Donovan
Schultz, Nigel Mc Gurg, Faizel Smith and certain other persons,
whose further
particulars are unknown to the State, to aid or
procure the murder of Roger Brett Kebble; and
Count 4
– Murder of Roger
Brett Kebble – the allegations being that upon or about 27
September 2005 and at or near Birdhaven
in the district of
Johannesburg, the accused did unlawfully and intentionally kill the
said Roger Brett Kebble.
[6] The Prosecution had duly
sought and was granted leave to prosecute even charges that occurred
outside the jurisdiction of this
Court together with those that were
committed within the court’s jurisdiction.
[7] Accused pleaded not guilty to all the charges on 26 July 2010
and put the State to the proof of all the allegations. He further

recorded that his version would appear from his counsel’s
cross-examination of the state witnesses.
[8] The accused also made formal
admissions in terms of
section 220
of the
Criminal Procedure Act
relating
to the identity of the deceased, his date, place and causes
of death, the results of the
post
mortem
examination on
the deceased’s body as well as the relevant photos contained in
a photo-album depicting the scene of crime
and the
post
mortem
examination.
Various exhibits of photos depicting the various crime scenes as well
as some of the state witnesses making some
pointings out were also
admitted as evidence by mutual agreement.
[9] In order for the evidence led herein to be understood in its
correct context, it is necessary that I set out what the various

descriptions of the prohibitions or crimes are as well as what the
requirements of each crime is:
Conspiracy
Section 18(2)(a) of the Riotous Assemblies Act describes conspiracy
to commit a crime as follows:
“
18(2)(a)
Any person who … conspires with any other person to aid or
procure the commission of or to commit … any
offence, whether
at common law or against a statute or statutory regulation, shall be
guilty of an offence and liable on conviction
to the punishment to
which a person convicted of actually committing that offence would be
liable.
”
This section does not differentiate between a successful conspiracy
(that is, one followed by the actual commission of the
offence) and
one not followed by any further steps towards the commission of the
crime. Our courts have held that this provision
ought to be
utilised only if the envisaged crime has not yet been committed.
See:
S
v Milne and Erleigh (7)
1951 (1) SA 791
(A) at 823.
S
v Njenje
1966 (1) SA
369
(RA) at 376-377.
S v Khoza
1973 (4) SA 23
(O) at 25.
On the other hand, there is no absolute prohibition on the State to
charge somebody with conspiracy even when the main crime
has in
fact been committed. It would of course be wrong to convict a
person of both the conspiracy and the main crime since
the two in
fact merge, just like where a successful attempt to commit a crime
merges with the completed crime.
See:
S
v Basson
[2000] ZACC 25
;
2001 (1) SACR
1
(T).
The requirements for this crime
are,
The Act, Intention, More than one party and Punishment
.
The Act
There should be at least two people for the crime of conspiracy to be
committed.
See:
S
v Sibiya
1993 (1) SACR
235
(A) at 249e.
S
v S
1959 (1) SA 680
(C) at 683.
S v Cooper
1976 (2) SA 875
(T) at 879.
Before there can be a conspiracy, X and Y or more people must
agree with one another to commit a crime. The act thus consists

of the entering into an agreement which is often expressed by the
statement –
“
…
there must be a meeting of minds …
”
See:
S
v B
1956 (3) SA 363
(E) at 365.
S
v Moumbaris
1974 (1)
SA 681
(T) at 687.
The conspiracy need not be express : it may be tacit. In the last
instance there will be a conspiracy only if other party(ies)
agree
to the scheme.
A court may infer a conspiracy
from a person’s conduct, provided that the inference is the
only reasonable one to be
drawn from the proven facts.
See:
S
v Khoza
(
supra
).
S
v Heyne
1958 (1) SA
607
(W) at 609.
S v Cooper
and
S v B
(
supra
).
The conspirators need not agree about the exact manner in which
the crime or crimes is to be committed.
See:
S
v Adams
1959 (1) SA
646
(Sp Court).
S
v Cooper
(
supra
)
at 879H.
Intention
A co-conspirator must have the
intention to conspire with another. He/she must intend to commit
that crime or to assist in its
commission. A conspiracy may only be
construed once a court is satisfied that a conspirator was also aware
of his/her co-conspirators’
knowledge of the conspiracy. Only
then will there be talk of “
…
a meeting of minds
”.
More than one party
As stated above there must be at least more than one person for a
conspiracy to be formed. One person cannot conspire with
himself/herself
to commit a crime. Equally, it is also accepted that
there can be no conspiracy between a company consisting of a single
person
and that single person controlling it.
See:
Mc
Donnel
[1966] 1 QB 233
All ER 193 (as discussed by Beuthin
1966 SALJ 224-226).
Punishment
A conspirator is liable to the same punishment as the person
convicted of committing the crime itself. Normally, if a crime has
a
minimum prescribed sentence, the court may not be obliged to impose
that minimum sentence for a conviction for conspiracy because
a
conspiracy mostly does not result in the same harmful consequences as
the main offence. A lighter sentence than a prescribed
minimum
sentence may be imposed.
See:
S
v Nel
1987 (4) SA 950
(T) at 961D-E.
MURDER AND ATTEMPTED MURDER
[10]
10.1
Murder
is the unlawful and intentional causing of the death of another
human being. The elements thereof are – (a)
causing
the death
; (b)
of another
person
; (c)
unlawfully
;
and (d)
intentionally
.
Murder may be caused through an act or omission which causes that
death.
Attempted murder
is an attempt
to do or commit the above. A person is guilty of attempting to
commit a crime if, he/she intending to do so,
unlawfully engages in
conduct that is not merely preparatory but has also reached at
least the commencement of the execution
of the intended crime. A
person is equally guilty of attempting to commit a crime even
though the commission of the crime
is impossible, if it would have
been possible in the factual circumstances which he/she believes
exist or will exist at the
relevant time. A person will also be
guilty of an attempt even when he/she voluntarily withdraws from
its commission after
his/her conduct has reached the commencement
of the execution of the intended crime. The stage of commencement
of execution
is also called the stage of consummation. Once this
stage is reached, “
attempt
”
as a crime is complete.
[11] In their opening address as well as in the indictment the
prosecution alluded to the accused having taken part in an assisted

suicide of the deceased herein. Although nothing further was said
about this in the prosecution’s heads of argument or their

address in opposition of the application for the discharge of the
accused in terms of section 174, it is my considered view that

something needs to be said about it in this judgment, more so that
the witness Clinton Nassif mentioned it during his testimony
and it
featured now an then during the evidence and/or cross-examination of
other witnesses, notably, Minaar, the butler at Brett
Kebble’s
house and Dominic Ntsele, Brett’s image consultant.
[12] Assisted suicide has at
times been confused with or equated to euthanasia. It is also
generally accepted that euthanasia
takes place within the medical or
patient world where mostly a terminally ill patient either asks
somebody, mostly a medical practitioner
to help him/her out of
his/her misery by administering to that patient a fatal dose of
something or gives such patient medication
or poisonous stuff for the
latter to end his/her life. Euthanasia is also divided into active
and passive euthanasia as well as
voluntary and involuntary
euthanasia.
[13] On the other hand, assisted suicide occurs when a person having
emotional problems or stress requests another person to kill
him by
any means. Assisted suicide is described in other circles as a
better test of the voluntariness of the choice to die or
the
patient’s resolve to end his/her life.
[14] Whereas euthanasia is believed to be practised within the
patient world, albeit not so openly or with clear-cut lawful and/or

legal authority, assisted suicide is still a very fluid situation in
South Africa as well as in other parts of the world where
countries
are still trying to grapple with what it is or whether it should be
permitted or not.
[15] In Great Britain the British Suicide Act, 1961 decrees that
aiding, abetting and assisting suicide is punishable with a maximum

of 14 years imprisonment. In Canada, The Canadian Penal Code –
section 241, decrees that everyone who counsels a person
to commit
suicide or who aids, or abets a person to commit suicide, whether
suicide ensues or not, is guilty of an indictable offence,
the
penalty being 14 years imprisonment. The strict interpretation of
this Act was relaxed in June 1995 when the Canadian Special
Senate
Select Committee on Euthanasia and Assisted Suicides recommended that
the laws relating to assisted suicide and euthanasia
be re-visited.
What happened in practice was that the attitude towards assisted
suicide was not relaxed but in relation to euthanasia
the Canadian
Parliament cautioned that voluntary euthanasia may be allowed under
very special circumstances but care must be taken
that adequate
safeguards are put in place to ensure that the patient’s
consent is given and received freely and voluntarily
if it is
practised.
[16] In Australia, the
Australian Criminal Code makes assisted suicide punishable. In terms
of that Code it is also a crime for
a doctor to put poison in the
hands of a patient well knowing that the patient may ingest it and if
so ingested it may cause death.
[17] In the Netherlands the
current position is that section 293 of the Dutch Criminal Code makes
it an offence for any person
to assist or aid another to commit
suicide. However a Commission has been set up to investigate the
need to legalise it and if
so, under what circumstances.
[18] In the United States of
America, until November 1994, assisted suicide was outlawed in all
the States. However, in November
1994 the voters of the State of
Oregon voted narrowly (51% to 49%) to allow it. Subsequent or
pursuant to that vote the Death
with Dignity Act was passed in Oregon
allowing terminally ill people to obtain a doctor’s
prescription for a fatal drug dosage
to end their lives. The doctor
however was not permitted to administer the dosage. If he/she did so,
he/she was liable or culpable.
This Act was challenged in the
Federal District Court of Oregon the same year and its use was
suspended pending a rule on its
constitutionality. In 1995 the US
Federal Court of Oregon State ruled this Act to be unconstitutional
and a permanent injunction
against its use granted. An appeal against
this ruling to the US Court of Appeals for the North Circuit was
dismissed. As such,
until further notice euthanasia and assisted
suicide is still a crime in the USA.
[19] In South Africa the
situation is still fluid and confusing. Different functionaries have
differing views about euthanasia
especially as well as assisted
suicide. Civil society of times holds views opposed by the religious
adherents who in turn are
wont to differ
inter
se
.
[20] Our courts have also in the
past sent out inconsistent views in contradictory judgments about
assisted suicide and euthanasia.
When one traces the development of
this phenomenon the confusion increases. The initial view was that a
person who knowingly supplied
any drugs to a patient for use in a
suicide or who hands another a weapon to kill himself/herself was
guilty of an offence. However,
other courts gave verdicts that were
inimical to the above view. For example –
In
R
v Peveret
1940 AD
213
the accused therein concluded a suicide pact with his mistress
– a Mrs Saunders. They both sat inside a car whose doors
and
windows were closed. Peveret introduced the exhaust fumes of the
car, whose engine was running, into the interior through
a
hosepipe. They were later discovered inside, unconscious.
Fortunately they did not die. Peveret was found guilty of attempted

murder of Mrs Saunders. His conviction was confirmed on appeal.
The opposite view was expressed
in
R v Nbakwa
1956 (2) SA 557
(SR) wherein a man living according to the old
style customs and traditions of his tribe in Zimbabwe suspected his
own mother
of having caused the death of his child by occult means.
When he confronted her his mother requested him to kill her. She

was sickly. Nbakwa entered her hut where she lay, tied a rope to a
rafter in the hut and also fashioned a noose at the rope’s

other end. He then told his mother to hang herself. She asked him
to lift her up and give her something to stand on. He
propped up a
block of wood under the noose. His mother put the noose around her
neck, kicked away the block of wood and started
hanging until she
died while Nbakwa stood there watching. Nbakwa was acquitted of
murder in his eventual trial, the court
finding that there was no
chain of causation between Nbakwa’s act and his mother’s
subsequent death. The court
ruled that the mother killed herself.
The court also refused to convict Nbakwa of attempted murder which
was a competent verdict.
Beadle J reasoned as follows:
“
The
accused did not actually kill the deceased himself, but if his acts
could be construed as an attempt to do so … In my
view the
acts of the accused … do not go far enough to constitute an
attempt; they go no further than what are commonly
called acts of
preparation. The accused provided a means for causing death and he
persuaded the woman to kill herself, but the
actual act which caused
the death of the woman was the act of the woman herself. There was,
to use a common legal expression, a
novus
actus interveniens
between
the actions of the accused and the death of the deceased …
I
come to the conclusion, therefore, that the accused's acts did not go
far enough to constitute an attempt to murder; at most his
acts went
no further than acts of preparation.
”
The above
rationale
in
S v Mbakwa
was followed in
S v
Gordon
1962 (4) SA
727
(N). In this case, Gordon entered into a suicide pact with his
girlfriend. He obtained or procured some lethal drug and they
both
ingested it. The girlfriend died but Gordon survived and lived. He
was charged with murder. Henning J distinguished this
case from
S
v Peveret (supra)
as
follows at p 730B-C:
“
…
it will be observed that in that
(Pevert’s)
case the accused completed every necessary act to bring about the
death of himself and Mrs Saunders, the starting of the engines
being
the final act. In the present case it is an accepted fact that the
deceased took the tablets herself and that was the final
act which
brought about her death.
”
The learned Judge went further to state the following:
“
To
my mind, the mere fact that he provided the tablets knowing that the
deceased would take them and would probably die cannot be
said to
constitute in law, the killing of the deceased. The cause of her
death was her own voluntary act of swallowing the pills.
The fact
that he intended her to die is undisputable, but his own acts
calculated to bring that result about fall short of a killing
or an
attempted killing by him of the deceased. One might say that the
accused, as it were, provided the deceased with a loaded
pistol to
enable her to shoot herself. She took the pistol, aimed it at
herself and pulled the trigger. It is not a case of qui
facit per
alium facit per se
.”
Our own Appeal Court dealt with
this aspect in
Ex
parte Die Minister van Justisie: In re S v Grotjohn
1970 (3) SA 355
(A). The court of appeal held among others that the
views propounded in
S
v Nbakwa
and
S
v Gordon (supra)
were not to be regarded as unqualifiedly correct. Steyn CJ put it
as follows:
“
Of
'n persoon wat 'n ander aanmoedig, help of in staat stel om selfmoord
te pleeg, 'n misdaad begaan, sal afhang van die feite van
die
besondere geval. Die blote feit dat die laaste handeling die
selfmoordenaar se eie, vrywillige nie-misdadige handeling is,
bring
nie sonder meer mee dat bedoelde persoon aan geen misdaad skuldig kan
wees nie. Na gelang van die feitlike omstandighede
kan die misdaad
moord, poging tot moord of strafbare manslag wees.
”
The above ruling was followed
subsequently. In
S v
Hibbert
1979 (4) SA
717
(D) Mr Hibbert handed his depressed wife a firearm after she
had expressed to him the desire to commit suicide. He was
convicted
of murder after his wife shot herself to death. Shearer
J put it as follows at 722E-H:
“
Now
in the present case the accused set in motion a chain of events which
ended in the deceased pressing the trigger of a fire-arm
which she
had been given by the accused and thus causing her death. The
successive words and actions of the accused were designed
to place
her in possession of that fire-arm and were accompanied by the
obvious hazard that the deceased might be persuaded to
inflict upon
herself an injury which could result in her death. The accused's
conduct fell short only of the final act of pulling
the trigger. It
seems to me that the act of pulling the trigger to which all the
other conduct conduced, cannot in any sense be
described as
independent of the course of conduct. That being so, we conclude that
there was, in the proper sense of that expression,
no
actus
novus interveniens
which
broke the chain of causation set in motion and continued by the
series of acts of the accused which I have mentioned. The
accused
must, as we have found, have appreciated that injury and possibly
death could result from his actions. That being so there
is present
the necessary intention to bring home a charge of murder. We find
therefore that the accused occasioned the death of
the deceased by
his conduct; that he had the necessary intention and is therefore
guilty as charged of murder.
”
20.7 The fluidity of the situation over assisted suicide and
euthanasia in South Africa prompted the Government to instruct the

South African Law Commission to make an in depth study of the
situation and report back. The Law Commission has done so and
submitted
its recommendations.
20.8 As regards euthanasia it is
also accepted that this is mostly restricted to terminally ill
people. It most involves the withdrawal
of medical treatment, care
and/or the switching off of life sustaining contraptions in the field
of medication to allow the suffering
patient or infirm person to die
in peace.
Those in favour of euthanasia, according to the Law Commission are
of the view that it should be formalised in an Act of Parliament
to
legalise the cessation of treatment on a patient and/or assist a
terminally ill person to die, subject to the following
criteria:
20.9.1 The patient must be terminally ill;
The suffering must be subjectively unbearable;
The patient must consent to the cessation of treatment or
administration of euthanasia; and
The situation precipitating the decision to euthanise or be
euthanised must be certified by at least two medical
practitioners.
See: Labuschagne JMT,
Dekriminalisasie van
Eutenasie
1988 THRHR
167
at 171-174.
20.10 Those against euthanasia,
mostly religious formations as well as civil society, have varied
views on euthanasia. According
to the Christians they cherish the
view that –
“
…
according to the Bible, God is the creator of life and therefore
the only one who may give or take the life of a human being.
”
The Muslims opponents also share
the same view, namely, that life and death are in the control of
Allah. To quote the Noble Qur’an
at 45:26 –
“
…
Say (o Muhammad): It is Allah who gives you life, then causes you
to die …
”
See:
Ebrahim
AFM : The Noble Qur’an on the end of Human Life, al-‘ilm
Vol. 16, 1996.
20.11 Civil society among others
opposes it on the basis of the principle of the “
Sanctity
of Life
”. They
argue among others that legalising euthanasia would require a
complete change in the whole common law understanding
of the
prohibition of murder since the principle of the sanctity of life has
always been the bulwark in every civilisation against
the arbitrary
destruction of the weak and the helpless. In the South African
context this school of thought contend that there
is a desperate need
in our country to inculcate a reverence for life in our citizens,
more so that our society is still struggling
to recover from social
engineering (read Apartheid) and that we should thus at all costs
avoid falling into life and death engineering.
They also hold the
view that to legalise euthanasia would lead to the erosion of medical
ethics as well as doctor-patient relationships.
They further contend
that public confidence in the medical profession will be undermined
and the relationship between doctor and
patient will be negatively
affected. The medical practitioner will be set in the role of an
executioner and it may open a way
for unscrupulous doctors not worthy
of the Hippocratic Oath to do all in their powers to see to it that a
patient in their care
who is not responding to their treatment
vanishes permanently, i.e.
dies
.
20.12 The general recommendation
or finding of the SA Law Commission was that there is still a general
prohibition of the intentional
killing, be it called murder,
euthanasia or assisted suicide. To quote from the SA Law Commission
at 4.111 paragraph 237 –
“
237. Ultimately,
however, we do not believe that these arguments are sufficient reason
to weaken society’s prohibition of
intentional killings. That
prohibition is the cornerstone of law and social relationships. It
protects each one of us impartially,
embodying the belief that all
are equal. We do not wish that protection to be diminished and
therefore recommend that there should
be no change in the law to
permit euthanasia. We acknowledge that there are individual cases in
which euthanasia may be seen by
some to be appropriate. But
individual cases cannot reasonably establish the foundation of a
policy which would have such serious
and widespread repercussions.
Moreover, dying is not only a personal or individual affair. The
death of a person affects the lives
of others, often in ways and to
an extent which cannot be foreseen. We believe that the issue of
euthanasia is one in which the
interest of the individual cannot be
separated from the interest of society as a whole.
”
At paragraph 239 thereof the Commission continues as follows:
“
239.
We are also concerned that vulnerable people – the elderly,
lonely, sick or distressed – will feel pressure, whether
real
or imagined, to request early death. We accept that, for the most
part, a request resulting from such pressure or from remediable

depressive illness would be identified as such by doctors and managed
appropriately. Nevertheless, we believe that the message
which
society sends to vulnerable and disadvantaged people should not,
however obliquely, encourage them to seek death, but should
assure
them of our care and support in life.
”
20.14 The advent of our
constitutional era also came with divergent views although the
Constitution itself recognises the right
to life as inalienable.
Some commentators and contributors to the debate on assisted suicide
and euthanasia in the SA Law Commission,
notably a Mr Fedler and the
organisation(s) whose views, ideals and aspirations he represented at
the Commission hearings sought
to filter in their view that any
legislation proposed or to be proposed, dealing with these topics,
will therefore depend,
firstly
,
on whether the courts give “
life
”
a content value, importing some form of quality of life beyond mere
existence;
secondly
, on
whether the courts accept that there are circumstances in which a
person’s quality of life has degenerated to such an
extent that
to prolong the dying process runs counter to the right to life
guarantee; and,
thirdly
,
to what degree the other rights of a terminally ill person embodies
the values of an open and democratic society which would justify
a
limitation of the right to life in circumstances where a person is
little more than alive.
20.15 In
S
v Makwanyana
[1995] ZACC 3
;
1995 (3)
SA 391
(CC) Chaskalson J (then) held that public opinion may be of
some relevance during the enquiry whether euthanasia was right or
wrong
but that in itself, is no substitute for the duty vested in the
courts to interpret the Constitution and to uphold its provisions

without fear or favour, because if public opinion were to be
decisive, there would be no need for constitutional adjudication.

The learned judge then went on to state or caution that the right to
life is subject to the then section 33 of the Interim Constitution

and that a limitation of this right may not necessarily amount to its
extinction.
[21] The conclusion one arrives at at the end of it all is that in
South Africa, a person assisting any other person to commit
suicide,
let alone actually kill the suicide requestor, will be guilty of an
offence(s). Consequently, anyone who conspires with
aids and/or
abets another to commit suicide, albeit it be called assisted
suicide, will also be guilty of an offence(s).
[22] It is in the context or
vein of the above said that I now proceed to briefly examine the
evidence of the state witnesses to
determine whether the accused
herein, Norbert Glenn Agliotti, is guilty as charged on any one or
more of the four counts he is
facing or whether any of the evidence
led this far leadsd to any other direction or whether on the evidence
this far led, same
is not sufficient to shift the evidential burden
onto his side to call for a response or reply.
[23] Under normal circumstances, when an application of this nature
is launched, courts would go straight for the jugular and
promptly
decide whether a discharge should be granted or not at this stage.
[24] The trial this far was long
and sort of involved. At a glance or in the eye of the uninitiated,
one would say this is a run-of-the-mill
case of murder and conspiracy
to commit on or other offence. Not so in this case. This case is
about hidden and/or sinister agendas
perpetrated by shoddy characters
as well as ostensibly crooked and/or greedy business persons. It is
about corrupt civil servants
as well as prominent politicians or
politically connected people wining and dining with devils incarnates
under cover of darkness.
[25] The accused’s heads of argument extended to 220 pages and
those of the prosecution cover 44 pages. Counsel for the
accused
argued for one and a half days whereas counsel for the prosecution
did so for about 50 minutes. The defence’s heads
of argument
are properly annotated with references to pages in the record of the
proceedings to which the respective submissions
or arguments relate.
Unfortunately, the same cannot be said of the prosecution’s
heads of argument. Except for impressive
references to case law at
the beginning thereof where they set out the legal position the rest
of the documents have bare statements
un-annotated with reference to
pages and/or parts of the record. Some of the assertions or
allegations ascribed therein to specific
witnesses were proven not to
relate to those witnesses by counsel for the accused.
[26] Apart from the official
recording of proceedings made during the trial a private company
applied for and I granted it permission
to also record the
proceedings. It has so happened that each and every day following on
the leading of evidence this Court, the
prosecution and defence would
be provided with a record or hard copy of the entire previous day’s
proceedings, weeks if not
months before copies of the official
recordings became available in dribs and drabs. I have taken the
liberty of comparing the
private recordings with my court notes and
later with the official record and found out that the private
recording was complete
without any missing evidence. On the other
hand, the official record as at a day before the date of argument
herein did not contain
the evidence of Stephen Mildenhall, Faizel
Smith, Alexi Dimitri Christopher, the interlocutory application to
have the evidence
of the accused’s bail application in the
Magistrate’s Court admitted, the evidence of Clinton Nassif on
5 August 2010
including cross-examination and re-examination, the
application by the defence to have the proceedings adjourned pending
their
application to have the prosecution stopped in terms of
section
6
of the
Criminal Procedure Act including
the ruling thereon and the
evidence of the investigating officer, Col Van Heerden.
[27] It is so that some further
recordings of the proceedings were distributed on the date of
arguments but obviously they would
not have been available to be
cross-referred to in the heads.
[28] The above regardless, I am satisfied that all the parties
herein had enough evidential material and exhibits to enable them
to
compile intelligible and helpful heads of argument.
[29] As the trial progressed I
had to deal with two interlocutory applications. The first, by the
prosecution, was for the accused’s
bail proceedings in the
Magistrate’s Court to be admitted as evidence in this trial.
The second application was by the defence
for this Court to hold up
or suspend the proceedings while they approach the National Director
of Public Prosecutions (NDPP) to
quash the trial as there was no
sufficient evidence and as such the trial was a waste of time. I
dismissed both applications :
the first one on the grounds among
others, that
section 60(11B)
of the
Criminal Procedure Act was
not
complied with in the sense that the accused was never warned by the
Magistrate in terms of that section before his evidence
was accepted
into the record; the second one, on the ground that this Court is
seized with this matter and as such was independent
and/or could not
wait to be told by the NDPP how this case should be concluded.
[30] I delivered full judgments on the two interlocutory
applications and they form two separate parts of this judgment.
[31] Another aspect that
characterises and distinguishes this ruling in terms of
section 174
from everyday rulings is that we are also dealing here with witnesses
who had been warned or admonished in terms of
section 204
of the
Criminal Procedure Act. This
Court should be in a position to decide,
at the end of the day, whether indemnity or immunity from prosecution
in future proceedings
arising out of the same facts should be granted
to each of those
section 204
witnesses individually. To arrive at
such a decision it is my considered view that each witness’s
testimony would or should
be dealt with as completely as summation
thereof would permit. That would be so because in the event of this
Court deciding to
grant any indemnity or immunity from prosecution,
that decision should have been premised on the evidence actually led
as qualified
by cross-examination and the credibility of each witness
may have played a part in that decision. The unfortunate flip side
or
converse of this is that in the event of
section 174
not being
granted, the whole process would have to be repeated at the end of
the trial.
[32] Against the aforesaid
backdrop I now proceed to set out as briefly as I can, the evidence
that was led by the State in substantiation
of the charges herein.
Ex abundandi cautela
in as far as those legally trained are concerned, but for the benefit
of the legally un-initiated, acceptable evidence in a criminal
trial
is not just the say-so of a witness, i.e. what the witness tells the
court in chief. It is that evidence as qualified or
coloured by
cross-examination.
[33] A witness may give an impressive rendition or account of an
event or events but when such witness is cross-examined, all
the good
that he did may be partially or totally negated. The previous
statements made by such a witness may be put to him/her
and the
cross-examiner may in that process succeed in casting aspersions or
doubt on the veracity of his/her story and concomitantly
on his/her
credibility.
[34] In the peculiar context of
this case, the statement(s) made by the witnesses who testified
herein may play a pivotal role
in determining the veracity of
individual witnesses or laying bare the motive(s) or bases upon which
the entire prosecution may
have been founded.
[35] This Court is mindful of
the fact that the decision to prosecute this accused alone was taken,
not by the present team of
prosecutors, but by a different one which
included Adv Gerrie Nel and Special Investigator Andrew Leask. That
initial team took
a conscious decision to offer
section 204
indemnity
to all the culprits that took part in or actually executed the
criminal acts that are the subjects of adjudication in
this Court,
i.e. the attempted murder of Mildenhall and the actual murder of
Brett Kebble, whether it is called murder or assisted
suicide.
[36] As the trial unfolded,
especially from the evidence of the 13
th
and last state witness, the current Chief Investigator, Col Van
Heerden, it is clear that some power play or absence or lack of

common unanimity of purpose was the order of the day within the DSO
inter se
,
the DSO and the SA Police Force proper as well as the DSO operatives
and the DPP on the other hand.
[37] According to Col Van Heerden when a decision was made to start
investigations in this case he was assigned as the Chief
Investigator. Within a short time he was inexplicably removed as
Chief Investigator and Andrew Leask was appointed or assigned.
That
was way back in 2005 and early 2006. Only during early 2010, in any
event, after this matter was supposed to have commenced
in February
2010 but was postponed by Adv Nel with the concurrence of the
defence, was he brought back into the case as Chief Investigator

again.
[38] According to him, the
atmosphere at the DSO or the Hawks offices as well as the DPP’s
offices was cold when he took
over : He distinctly formed an
impression or opinion that this case or its investigation played
second fiddle to the prosecution
in the case involving the former SA
Commissioner of Police, Jackie Selebi. He and his team of fellow
investigators and prosecutors
were denied access to the boardroom
that used to be the nerve centre of investigations herein, where
dockets, affidavits and other
relevant documentation relating to this
case were also kept. Importantly, relevant and/or material
statements of witnesses that
could have played pivotal roles in this
prosecution were not handed over to the new teams. He pointed out
that the fact that the
accused herein was already in custody or
arrested long before former Commissioner Selebi was and the fact
again that Selebi’s
case was commenced with on trial before the
accused’s was, was also indicative of something not right or
askew within the
scheme of things.
[39] It was in the above context
that Col Van Heerden professed lack of knowledge of an affidavit or
statement of one Paul Stemmet
who, according to the defence, was the
trigger or cause for the arrest of both the accused and Jackie
Selebi. He stated that it
was not among the statements or dockets he
received to continue with investigations herein. When Adv Hodes SC
chronicled the chronology
and importance of Paul Stemmet’s
statement in so far as it related to this accused, Col Van Heerden
agreed that that affidavit
was relevant and material to this case and
ought to have been at least disclosed and handed to the defence for
purposes of preparing
for this trial. Lead counsel for the
prosecution, Adv Dakana, also professed no knowledge of this
affidavit, meaning that the
previous prosecutions team herein did not
place all the tools of the trade in the hands of their successors. To
venture an opinion
why this was the case would amount to speculation
on my part and I am not prepared to speculate on what they could be.
[40] To compound matters, when
the accused was arrested on 16 November 2006, the basis therefore was
the
section 204
statements made by Nassif, Mickey Schultz, Nigel Mc
Gurg and Kappie Smith, but notably that of Nassif because the others
did not
implicate him on anything. The defence was able to prove a
point out that the
section 204
statement of Nassif which was dated 8
November 2006 as well as those that preceded it made on 10 November
2005 did not implicate
the accused in any wrongdoing in relation to
any of the charges the accused is now facing. The supplementary
affidavit by Nassif
in which he now made mention of the accused as
having been present at various meetings where conspiracies were
hatched to injure
or kill people was only deposed to on 30 March 2010
but he as Chief Investigator only received same on 13 July 2010 on
the occasion
of his second consultation with Nassif. This was after
the latter mentioned it on the occasion of his first consultation
with him
on 9 or 10 June 2010 and that triggered his memory to
remember that he once saw something similar in the possession of the
previous
investigations and/or prosecution teams at the DSO offices.
This important document was only handed to the defence on 19 July
2010. It should be mentioned here that this supplementary affidavit
was not made in terms of
section 204
of the
Criminal Procedure Act.
[41] The above lends credibility
to the defence’s submission that the decision by the
prosecution in July 2010 when this
case resumed after it was
postponed in February 2010, to amend the indictment so as to add the
conspiracy charges, without prior
warning or notice to the defence,
nogal
, was an indication
that the amendments were predicated or informed by the contents of
the supplementary affidavit of Nassif.
[42] Col Van Heerden also
testified that the DSO’s decision to grant
section 204
indemnity to all the actual shooters or executioners of the plans to
eliminate, permanently or temporarily, some of the victims
mentioned
in this case did not sit well with senior police officers and even
the National Commissioner of the Police.
[43] This points to some kind of
“
MUVHANGO
”
(conflict or
dissensus
)
somewhere in the
innards of the DSO and DPP which is fortunately, no concern of ours
here. Suffice to say that insofar as statements,
affidavits,
dockets, evidential material and anything that impacted on this trial
was held back by the past or present investigations
teams, both the
State and the defence were hampered and the course of justice was
somewhat hindered if not obstructed.
[44] This witness testified that
he had not as at the date he testified in October 2010, obtained the
statements of the complainants
Dr Mark Bristow, Mark Bristow and Jean
Daniel Nortier. He categorically stated that the accused herein, on
the evidence at his
disposal, did not attempt to kill or conspire to
kill Stephen Mildenhall; neither was he present at the place where
Brett Kebble
was shot dead.
[45] The above witness’s testimony did not substantiate the
prosecution’s opening address that he would come and tender

evidence that connects the accused to the charges in the indictment
herein.
[46] The first three witnesses,
Schultz, Nigel and Kappie were the
section 204
witnesses that did the
actual execution of the plan to incapacitate Mildenhall and
participated in the shooting to death by Schultz
of Brett Kebble.
Their rendition was like a scene from a mafia film – tragic,
emotionless and comical – only that
it was real and serious.
Mickey Schultz
[47] He met Clinton Nassif
around 1994 when he was still working for Brian Mitchell Scrap Yard.
Incidentally Brian Mitchell is
the well known former World Boxing
Champion and Schultz is a budding boxer. At the time Nassif owned
and/or operated his own scrap
yard or a used vehicle outlet called
JAP Used Spares. They developed a close relationship and in 1996
started a business of re-building
accident-damaged motor vehicles
together. He was there until 1999 when he went into the night club
bouncer business. Bouncing can
be loosely interpreted as a sort of
work as a security officer or door-man at hospitality or liquor or
related business concerns
and bouncers were sort of enforcers used by
owners to eject unruly patrons.
[48] In the year 2003 he started a security company with the name
Effective Security, supplying guards or doing guarding services
at
business concerns and private homes or for individuals. At the same
time Nassif started his own security company, CNSG.
[49] According to him Nassif told him that he was handling big
contracts offered to him by the billionaire Kebble family. He

offered him a position at CNSG as manager and he accepted. He started
there in January 2005, his principal duties being to look
after VIP’s
within the Kebble empire, mostly, if not exclusively the directors
thereof.
[50] To put issues in a proper
perspective the principal players in this case were the following as
set out in the statement of
case forming part of the indictment:
The Kebbles, Roger and Brett were involved in various mining
ventures, namely, JCI, RGE and DRD. Their main office was in

Central Johannesburg.
Brett was Chairman of the Board of JCI and RGE, controlling their
day-to-day activities. Roger was Chairman of the Board of DRD
doing
there just as Brett was on his side of the empire. Roger was also a
board member of JCI and RGE.
John Stratton was an Australian
citizen who held directorship in various companies incorporated in
Australia and South Africa,
including JCI, RGE and DRD. He became a
director of JCI in 1998 rising to executive director there,
assisting Brett in the management
functions there. His main
responsibilities were to develop new business, direct existing group
activities, assist Brett in improving
the financial position of JCI
and its related group of companies, manage security and intelligence
consultants and also manage
ongoing litigation against the group of
companies. He, like Brett kept houses in both Johannesburg and Cape
Town and regularly
commuted between the two cities.
[51] Mark Wesseley-Woods was
appointed as a director of DRD in 1998. After his appointment he
uncovered a series of irregularities
within the company and ousted
Roger Kebble from his position as chairman of the DRD Board. He
instituted an extensive audit of
DRD which led to a series of
expensive litigation, both in Australia and South Africa, relating to
alleged siphoning of money by
the Kebbles from DRD. Among others the
Kebbles were ordered to pay the amount of R40 million in March 2005
in respect of such
litigation between JCI and DRD. The above
situation made the Kebbles and Stratton very unhappy, more so that it
emerged that from
2003 JCI and RGE were shown to have been in dire
financial straits, all factors that prompted Brett Kebble and
Stratton to devise
means of making Wellesley-Woods disappear –
even permanently.
[52] Jean Daniel Nortier was the
Chief Financial Officer of an entity called Aflease. During 2004
Nortier attempted to assist RGE
out of its financial difficulties by
entering into a share swap agreement involving Aflease, and RGE. It
was part of the deal
that the excess cash raised from the sale of RGE
shares by RGE would be paid to Aflease. RGE failed to honour the
agreement, precipitating
letters of demand from Aflease lawyers to
RGE. This bedevilled relations between them, especially Nortier, as
both the Kebbles
and Stratton were left exposed and their company’s
reputation shattered.
[53] Stephen Mildenhall was an employee of Allan Gray, a registered
portfolio manager dealing mainly with investment portfolios.
It
handled JCI and RGE’s investment portfolios. During 2005
Mildenhall discovered that both JCI and RGE had failed to comply
with
certain crucial listing requirements of the Johannesburg Stock
Exchange. During July to August 2005 negotiations were under
way
between officials of Investec Bank and JCI with a view for the bank
to grant JCI a loan to save it from a possible liquidation.

Mildenhall was central to these negotiations. He proposed that in
order for JCI to recover financially, Brett Kebble should
not be
allowed to continue to have control over JCI and RGE. This
infuriated the Kebbles and Stratton and they planned to harm
him.
[54] Dr Bristow, the CEO of a
subsidiary of RGE, Randgold Resources Ltd also insisted on Brett
Kebble clarifying whether he had
sold RGE’s stake in Randgold
Resources. He became a sworn enemy and the Kebbles and Stratton
planned to harm him too.
[55] Nassif was allegedly introduced to the Kebbles and Stratton by
the accused (Agliotti).
Michael Schultz was employed by CNSG. Nigel and Faizel (Kappie)
were long-time associates of Schultz.
[56] According to Michael Schultz in his testimony in court, Nassif
had engaged a number of ex-policemen as investigators in his
business
among whom was Stephen Sanders. He came across most of them as he
went about his business at CNSG. Among them was also
Hennie
Breytenbach, the Kebble’s group’s financial manager.
[57] Michael Schultz went on to
state that apart from Brett Kebble and Stratton he also met the
accused at Nassif’s home.
That is where he was told Agliotti
had some business relationship with the then South African Police
Services Commissioner, Jackie
Selebi. Selebi’s girlfriend was
also set up in a job at Santam Insurance Company through them but she
was discharged there
due to incompetence, whereafter Nassif gave her
a position at CNSG.
[58] Michael Schultz further
stated that at some stage Nassif told him of a hit-list which
included Bristow, Nortier, Wellesley-Woods
and Mildenhall. He said
he was told by Nassif that the list was from Brett Kebble and
Stratton. Details of the proposed victim’s
residential and
work addresses were on that list. He was instructed to go to Cape
Town to spy on one of the intended victim(s),
Nortier, as well as
Wellesley-Woods and Bristow in Johannesburg. He and his friends,
Nigel and Faizel did so, monitoring their
unsuspecting victim’s
movements and taking photographs of them and their houses and
surroundings. Wellesley-Woods was even
photographed while he was at
his house in London.
[59] As a result of the
surveillance processes Mildenhall was shot and wounded on his arms
and shoulders in a staged “
hi-jacking
”
or robbery in his driveway at Claremont, Cape Town on the evening of
31 August 2005. Mildenhall did not know that initially
he was to be
shot dead until the plan was altered by Brett Kebble, Nassif and
Stratton to injure him instead.
[60] Other VIP’s like the
editor of Noseweek Magazine were also on the hit list because he
wrote disparagingly about the
Kebbles in his magazine.
The photos allegedly taken during the surveillances were ultimately
handed over to one of the investigators of this case, one
Piet van
der Merwe.
Schultz gave greater details concerning the shooting of Mildenhall
and Brett Kebble.
Concerning Mildenhall his story was shortly as follows:
During the middle of August 2005 Clint Nassif informed him that
Brett Kebble and John Stratton wanted a certain individual
who was
an auditor at Alan Gray Administrators in Cape Town eliminated.
This person was Stephen Mildenhall. At first their
mandate was to
kill Mildenhall but later this was changed to an order that he be
incapacitated for 2-3 months so as to ensure
that a R500 million
loan Brett Kebble and Stratton were negotiating with Investec Bank
was finalised without a hitch. They
feared that Mildenhall could
jeopardise the deal as he was in possession of sensitive
information that could be detrimental
to the deal, more so that
Mildenhall was insisting that the loan should only be granted on
the condition that Brett Kebble
is first removed from the control
and boards of the JCI and related group of companies. Brett Kebble
and John Stratton wanted
him taken out of commission until they had
achieved their purposes. However, Brett Kebble was still removed
from control of
the companies.
Mickey approached Nigel and
Kappie. The latter indicated that he knew of people in Cape Town
who would do the job.
Nassif gave one of his
employees, one Mohammed Mazibuko a cheque for R200 000,00 to cash
at a bank. Mickey took the cash and
they set off to Cape Town in a
BMW X5 Sport Utility Vehicle (SUV) that was loaned to Nigel by a
garage where he was purchasing
another BMW for his wife.
Along the way just outside
Colesberg in the Western Cape Province the BMW X5 collided with a
wild animal and could not proceed with
the journey as it overheated.
They nursed it into town. Mickey phoned a friend of his in the tow
business, Robbie Goswani to come
and collect the X5 and also inform
Nassif of their problem. They then booked into a Bed and Breakfast
(B&B) for the night.
The following morning Nassif
arrived accompanied by Robbie. Nassif hired them a Volkswagen Golf
at a local Avis outlet. Nigel
and Kappie proceeded with the trip to
Cape Town and Mickey returned to Johannesburg with Nassif. He
handed the R200 000,00
to Kappie. None of the conspirators, i.e.
Mickey, Nigel or Kappie brought their cellphones along : it was
their
modus operandi
never to use their own cellphones to communicate with each other or
with other persons, more so when they are travelling to
the
outside. This, Mickey stated, was to ensure that their movements
were not traceable as cellphone or signal beacons would
betray
their whereabouts. For the same reasons they avoided using
airports and planes as their movements would be traced.
They used a
pay phone to call Robbie.
He, Mickey drove back to Cape Town after a day to join his friends
whom he found at the Waterfront Holiday Inn in Cape Town.
Nassif had given them a piece of paper with Mildenhall’s
personal particulars – his car registration numbers, make
and
colour, his home address and Alan Gray work address in Cape Town.
Kappie and Nigel told him that they had already found
two men who
were willing to shoot Mildenhall for a fee of R150 000,00. They
also told him that they had located his house
number. They took
him to the address to view it as they drove past. For
communication purposes in Cape Town they bought a
pay-as-you-go
cellphone.
After three days of
surveillance of the house in Cape Town they could not see anybody
come and go from the house. They then
went to his workplace at
Alan Gray. Kappie sneaked into the basement parking lot and found
the car fitting Mildenhall’s
car’s description. They
staked it and followed it after work to a house in the same
locality as the one they had on the
piece of paper, which looked
exactly the same but only with a different street number. Mickey
drove back to Johannesburg and
Nigel and Kappie remained behind.
Along the way to Johannesburg he (Mickey) was given a traffic fine
which he said he dilly-dallied
to settle or pay and which had the
potential to compromise his movements or whereabouts.
That evening, when he was in Johannesburg, Nigel phoned him and
told him t hat the work was done – meaning, Mildenhall
had
been shot according to plan. He told Nassif who ordered them to get
rid of the cellphone.
The following day he met Nigel
and Kappie at the scrap yard. They gave him Mildenhall’s
driver’s licence as proof
that they dealt with him as
planned. They told him they shot him (Mildenhall) on both
shoulders. He gave the driver’s
licence to Nassif. Nassif
later told him (Mickey) that Brett and John Stratton were happy
with the Cape Town job. He further
stated that the shooters were
paid R150 000,00. The balance of R50 000,00 went to incidental
expenses they incurred.
He emphasised that they were not paid for Mildenhall’s
shooting. What they were told was that they will be well looked

after. They were satisfied with this as it meant they were being
acknowledged as being the heavies of their world.
[61] Concerning Brett Kebble the story went as follows:
A week or two after Mildenhall was shot Nassif approached Mickey
and told him that Brett Kebble wanted to be shot. At first
he
thought it was a joke but Nassif impressed it on him that Brett
wanted to be shot dead. When he asked Nassif what the reasons
were
for this ridiculous request he told him that Brett had stolen a lot
of money from his group of companies and he feared
to go to jail
for a long time. Another reasons Brett allegedly advanced was that
he wanted to be remembered as a mattyre,
not a thief; and that he
wanted to save his reputation as well as those of his family and
John Stratton. Nassif also mentioned
that the fee for the job was
R2 million.
He (Mickey) suggested that they
hire killers from Cape Town but Nassif refused, saying that he did
not want any come-backs.
He contacted Nigel and Kappie and they agreed to help with the job.
They hatched a number of plans
or
modus operandi
about how Brett should die : that he be shot in his driveway and
make it look like a robbery, shoot him as he walked or drove
in the
street, shoot him in the street and abandon his car at a place
where the police can find it with his corpse inside,
make Brett
drive himself with him (Mickey) inside to a secluded spot where
Mickey would then shoot him, shoot him in a restaurant
: and so on.
Mickey did not like them all. He had a number of reasons for
rejecting them : the guards at his house, his fingerprints
inside
Brett Kebble’s car, the unpalatable thought of driving with
Brett for 5 minutes in the same car and then cold-bloodedly
shoot
him dead, the eye-witnesses that may recognise him in the street or
restaurant. He suggested to Nassif that Brett Kebble
could as well
shoot himself dead or he Nassif shoot him dead.
Nassif ultimately came up with a novel plan : that Kebble drive
after dusk along a dark and secluded street where they could
shoot
him dead and make a safe get-away.
He (Mickey) liked the plan.
Together with his friends, i.e.
Nigel and Kappie, they scouted around Brett Kebble’s area and
found an appropriate area
around Melrose Street and surrounds. It
was agreed that Brett Kebble would drive around and upon seeing the
assassin’s
car, stop at the shoulder of the road and open his
car window. They (Mickey and company) would pull up alongside
Brett’s
car, shoot him through the window and then disappear.
Mickey communicated this plan
to Nigel and Kappie.
[62] On 22 August 2005, a week
before Brett Kebble was shot dead Nassif took Mickey and Nigel to
Brett Kebble’s house : he
stopped their car in the driveway
near some open garage doors. Inside one of the garages Brett
Kebble’s silver grey Mercedes
Benz
S600
was parked. It had
Cape Town number plates. The purpose was for Mickey and Nigel to
familiarise themselves with the car which
Brett would be driving on
that day on which he wanted to be shot. Nassif then went into the
house alone, leaving the two of them
outside in the car, after Mickey
refused to enter with him.
[63] After a while John Stratton
came out of the house and waved at them and went back inside.
Immediately thereafter one Andy
Minaar who served as a Butler at
Brett Kebble’s house came out and saw them as they were inside
the car. He also returned
back into the house. They then went home.
[64] The same day in the
afternoon Nassif told them that the job had to be done that same
night i.e. 22 September 2005. He gave
Mickey a handgun – a
Smith & Wesson .40 – which he said was left with him by a
hell’s angel biker friend
of his called Jethro from America to
keep for him. It was to be used and then destroyed immediately.
[65] During early evening while
he was resting, waiting for the appointed time to go do the job on
Brett Kebble, Mickey received
a phone call from Nassif’s wife
with a message to the effect that he contact Nigel and Kappie and
tell them the meeting was
off. He understood the message to mean that
the shooting of Brett Kebble should not proceed that night. He
arrived at this conclusion
because there was no meeting to be
attended to that night by him, Nigel and Kappie.
[66] Shortly thereafter he
received a call fro m the accused on his cellphone : His message to
Mickey was –
“
Call
the boys off
.”
He also understood this to mean:
“
Stop
the shooting of Brett.
”
[67] He contacted Nigel and
Kappie to relay the message. Nigel was furious and told him that he
received a similar cellphone call
from the accused. Mickey cooled him
down.
[68] The following morning he
(Mickey) confronted Nassif about the accused’s previous night’s
message or instruction
or order. He was flabbergasted that the
accused also knew of the plot to kill Brett Kebble. Nassif
re-assured him and told him
not to worry as the accused was the
person arranging for the payment of the monies they were to receive
after the job was done.
Clint told Mickey that the shooting should
take place on the evening of 26 September 2005. It would be a Monday.
[69] On Monday 26 September 2005
Clint Nassif phoned Mickey and told him that Brett Kebble would be
driving along Central Road
in his suburb of Illovo and they should
follow him. When they reached the pre-arranged area they should
flash their car headlamps
at him. When he stops Mickey should shoot
him in the head and make sure he dies immediately. He did not want
him to suffer. They
should then get out of the area swiftly and then
destroy the firearm. He further told them that if things go well
(former Police
Commissioner) Jackie Selebi would cover their tracks :
he would preside over or supervise investigations that would be meant
to
obliterate traces of their complicity in the murder. That Selebi
would delay any impending police action against them if things
go
wrong and that in the event of success he (Jackie Selebi) would keep
them informed of developments during the investigations.
He told him
to keep his cellphone on, throughout.
[70] He (Mickey) relayed these messages to Nigel and Kappie. That
very evening Mickey borrowed his wife’s Volkswagen Golf
GTi,
collected Kappie and Nigel at their respective places namely, panel
beating shop in respect of Kappie and Sandton in respect
of Nigel.
He had his licensed firearm with him wrapped in a plastic bag. The
plastic bag was meant to catch or collect the spent
cartridges when
it was fired.
[71] On their way from Sandton
to their alleged rendezvous with Brett Kebble the car started
overheating. Due to traffic congestion
the temperature meter went
into the reds. They were forced to pull into Sandton Drive at The
Baron business premises to ask for
water. The water lowered the
engine temperature and they proceeded towards their meeting area with
Brett Kebble, whose car they
met as they drove along Central Road
going in the direction of Morse Antonio Restaurant. They made a
U-turn, flashed their headlamps
at it, which was a pre-arranged
signal which would alert Brett Kebble that his shooters had arrived.
According to this witness
Brett Kebble acknowledged their signal by
flashing his lights also. They followed his car as it turned left
into Oxford Street,
into Corlett Drive and left at a T-junction, into
North Street, past the first traffic circle that is next to Planet
Fitness.
[72] Their car had re-started overheating again as they followed
Brett Kebble’s car left into Edgecombe Road. When Brett
Kebble
turned right at the next street they took an exit over the freeway to
the left and stopped at a nearby garage where they
waited for their
car to cool down. They had lost Brett Kebble.
[73] They abandoned the operation. Mickey dropped his two friends
at their respective places and went home.
[74] The next morning Nassif came to his office at CNSG Security and
he (Mickey) told him of their previous night’s car
problem.
According to him (Mickey) Nassif told him that Brett Kebble was
furious about their failure to shoot him dead and that
he drove
around in circles looking for them in vain.
[75] Later that very same day, i.e. 27 September 2005 Nassif came to
tell Mickey that the job had to be done that same night.
They agreed
on a time an hour later than the previous day’s time. They
further agreed that the shooting should happen at
the area around
North and Edgecombe Roads where it was quiet.
[76] That evening Kappie
arranged a black Volkswagen Citi Golf that belonged to one of his
clients at his panel beating business.
The client did not know of
this. Mickey had a handgun in a kit-bag. From the Athol-Oaklands
off-ramp to the M1 freeway they drove
into North Road. Next to the
Plant Fitness they saw Brett Kebble’s car approaching. As it
passed theirs they made a U-turn
to follow it, flashing their
headlights as pre-arranged. According to this witness Brett Kebble
acknowledged the signal and slowed
down. He turned into Edgecombe
Road. They followed. Near Kings they agreed the area was quiet
enough for their job. They flashed
the headlights of the Golf
Volkswagen again and Brett Kebble pulled his Mercedes Benz onto the
shoulder of the road. They stopped
alongside it. Mickey was seated
in the rear seat on the left, right opposite to where Brett Kebble
was seated in the driver’s
seat of his car looking straight
ahead, his two hands clasped firmly at the steering wheel.
Fleetingly he (Brett) looked towards
their car and their eyes met.
It was the first time he saw Brett close. He (Mickey) pointed the
firearm at his head and pulled
the trigger. The gun jammed. As it
was wrapped with a plastic bag he thought this was the cause of the
non-fire. Brett Kebble
drove forward and they followed. He turned
left into a side street and stopped in the middle of the road. They
pulled up alongside
his car and Mickey pointed the gun at his head
again. He had in the meantime cleared the chamber of the jammed
bullet and re-cocked
it. Brett Kebble was still adopting the same
stance behind the steering wheel. He also raised his right shoulder
without removing
his hands from the steering wheel as if posing for a
photo. Mickey pulled the trigger and again the gun jammed. He became
anxious
and confused. He even told him (Brett Kebble) to wait for him
right there. Kappie made a U-turn and drove over a bridge across
the
M1 freeway while Mickey cleared the chamber, cleaned the gun and
re-loaded the magazine and cocked it. They drove back to
where they
left Brett Kebble’s car but it had moved. They followed it as
it drove towards the intersection of Edgecombe Road
and Melrose
Drive. It stopped. According to this witness Brett Kebble looked at
him, clearly disappointed. According to him
the look in his eyes was
like he was saying:
“
Hell
man! Get done with this …
”
[77] Mickey reeled down his
window, pointed the handgun at Brett Kebble and fired. He (Brett) was
hit. He kept on firing, say,
four, five times as his instructions
were to make sure he died and died swiftly without suffering.
[78] They then drove off. As
they went they saw car lights to the rear and Nigel said it looked as
if they were being followed.
In fact it was the headlights of Brett
Kebble’s car as it lurched forward towards some embankment
nearby.
[79] They took evasive action until they reached Kappie’s
panel beating shop where a security guard opened the gate for
them.
Mickey cleared the gun’s chambers, took out the magazine and
handed the firearm to Kappie. The latter cut it up into
pieces with
an acetylene torch. Kappie was instructed to dispose of them. Nigel
dropped Mickey at his home.
[80] The following day Mickey went to meet Nassif at their gym as
agreed but the latter was not there. He phoned him and Nassif
told
him of Brett Kebble’s death. He looked on the TV-set and saw
how the death was reported thereon. According to him
it was the
hotline news of the day.
[81] Upon his arrival at the
CNSG offices he found Nassif, Steven Saunders and Mc Ford in Nassif’s
office talking about Brett
Kebble’s death. He left them and
when to his office. Nassif followed him there accompanied by Saunders
and demanded full
details of the previous night’s shooting.
Reluctantly he related their failure and ultimate success to him.
His reluctance
was based on their pact that the Brett Kebble
operation was supposed to be known only by Nassif, Nigel, Kappie and
Mickey. Nassif
re-assured him that Saunders knew of the operation.
Later that day Saunders even remarked to Mickey that –
“
Brett
got what he wanted …
”
[82] That afternoon he travelled
with Nassif and Saunders to OR Tambo International Airport to collect
Brett Kebble’s father,
Roger Kebble. At the airport they found
some of CNSG investigators, namely, Dick Diederichs, Bossie, Burger
and Beukes. These
men were ex-security policemen who were now working
for CNSG Security. The place was teeming with members of the press.
The security
men sneaked Roger Kebble via the restricted VIP section
of the airport out of the view of the media and out of the airport.
According
to Mickey before they departed from the airport the accused
joined them. The accused then left with Roger Kebble.
[83] After about a week they moved the location of their business.
Shortly thereafter he (Mickey) happened to be in Nassif’s

attorney’s offices. The witness did not elaborate as to why he
was there. He only stated that the attorney, a Mr Tamo Vink,
asked
him to relay to him how the shooting took place.
[84] When he returned to their security company offices he
confronted Nassif about Tamo Vink’s enquiries and Nassif
re-assured
him that Vink was safe as he was his attorney.
[85] Mickey reiterated that when he did not receive his share of the
promised R2 million for the Brett Kebble job, he pressurised
Nassif
over this and the latter told him that they were not being paid
because John Stratton had not yet paid him. When they put
more
pressure on him he gave Mickey R100 000,00 in cheque form drawn on
CNSG ordering him to cash it, give him (Nassif) R10 000,00
therefrom
and then split the rest with Nigel and Kappie, which he did.
[86] Because he (Mickey) was the
one who recruited Nigel and Kappie they put more pressure on him, he
in turn put pressure on Nassif
who paid them the rest of their money
from the proceeds of a house he had sold. In fact Nigel and Kappie
got their full R500 000,00
each and he (Mickey) did not receive the
whole of what was due to him at the same time with the other two.
The rest of the money
was paid to him in drips and drabs until it was
fully paid.
[87] Michael Schultz further
testified that at some later stage the accused contacted him through
an acquaintance of his and asked
for a meeting at the Newscafe in
Sandton. He (Mickey) went there but the accused was not there. When
they were leaving for the
Grand Club (Hatla) they met him, just
arriving. He followed them there and he (accused) told him that he
(accused) still had a
very good relationship with Roger Kebble.. Also
that Roger was willing to pay good money if he (Mickey) sees to it
that Nassif
was engaged in a bar brawl or fight. He did not come out
clean about what should happen in that bar fight. What was apparent
was that there was no love lost between the accused and Nassif and/or
Roger Kebble.
[88] Michael Schultz was asked to explain how it came about that he
be a state witness in this case. He testified that his attorney,
a
Mr Small-Smith, summoned him to his office and told him that the
Police, specifically the Scorpions, were offering him an indemnity
or
discharge from prosecution in the Brett Kebble case if he was
prepared to relate in court what happened, honestly and truthfully.

At first he said he refused but he was later convinced that this was
the only way out to avoid a lengthy prison sentence for his
part in
the murder. He and his attorney drew up a statement which was handed
to the Police/Scorpions.
[89] This witness further stated
that during the investigations where he made a full and detailed
statement before the Scorpions
he even took them to the various spots
in Cape Town and Johannesburg where he pointed out the material
points where different acts
like surveillance, shooting and murder
took place, including houses. He also participated in a series of
reconstruction of scenes
of crime where photos were also taken. Some
of the photos also showed where the various victims mentioned in the
indictment lived.
This statement was made in terms of
section 204
of
the
Criminal Procedure Act.
[90
] The photo-albums compiled from the photos together with their
keys were handed into the record as exhibits as stated hereinbefore.
[91] He stated further that at no stage was he arrested in
connection with all the crimes that he was involved in that relate
to
the charges herein.
[92] During cross-examination by counsel for the accused Schultz
conceded that –
the accused never conspired with him to murder Brett Kebble; and
accused never conspired with him to murder Jean Daniel Nortier, Dr
Mark Bristow and Mark Wellesley-Woods.
[93] He specifically conceded
that the accused never conspired with him or any other person to
murder any person, that he never
attempted to murder Steven
Mildenhall or conspire with him to aid or procure the death of Brett
Kebble, or murder Brett Kebble.
He further conceded that the accused
never discussed with him anything relating to Mark Bristow, Jean
Daniel Nortier, Mark Wellesley-Woods
or Steven Mildenhall.
[94] In relation to the Brett Kebble murder this witness stated that
the accused only talked to him about him (Kebble) when he
told him
telephonically to call off the boys, which he understood to mean they
should not go ahead to shoot Brett Kebble. He went
on to state that
he agreed to shoot Brett Kebble and organise the injury to Stephen
Mildenhall out of the close relationship, loyalty
and brotherhood
that he had with Nassif. That he would do anything for him without
questioning the motive or rationale or reasons
as their relationship
with him goes backwards and is deep and special.
[95] Insofar as all what
happened in this case, he got all his instructions from Nassif and
nobody else, hence he demanded and
received all his payments from
him. When he was not paid he never confronted the accused because
insofar as he knew the accused
was not involved in the planning of
the “
hits
”.
He even stated that he did not accept Nassif’s mention or
utterances that the accused was involved – be it
on the small
scale of being a conduit for the finances from Brett Kebble through
John Stratton.
[96] This witness further conceded that this accused never
benefitted financially from the crimes or jobs set out in the
indictment
herein.
[97] He also stated during this
period that he, Kappie and Nigel were together in the same office of
their attorney Mr Small-Smith
when they discussed the purported deal
from the NPA and that he was aware of or had seen Nigel’s
statement when he made his.
In fact their three statements made that
day were identical in all respects, comma, full stop and all, except
for their respective
names and ID numbers. They were attested to by
the same official and more importantly, at the same date and time.
They even deposed
to confirmatory affidavits to the effect that they
had read each other’s statements and they confirmed the
correctness or
authenticity of the contents thereon insofar as those
statements related to them.
[98] For completeness sake the short statements that Schultz, Nigel
and Kappie made are dated 14 November 2005. Their long
section 204
statements are dated April 2006. Schultz’s statement was
finalised and attested to on 13 April 2006.
[99] It emerged during the cross-examination of this witness that he
signed a third statement on 6 June 2007 in which he among
others
listed the cellphone numbers he was using at the time. The office
one was 082 523 7953 and the private one, with numbers
082 559 6453,
was registered in the names of one Lolly Jackson, who is known to be
the proprietor of a string of Strip Clubs among
which is the
notorious Teazers franchise.
[100] The witness conceded that the meeting that he had with the
accused at the Newscafe, Sandton subsequent to Brett Kebble’s

shooting and which was continued the same night at The Grand Strip
Club in Rivonia was about the fact that Nassif was receiving
money
from the Kebbles or Stratton in respect of services rendered by
various clients to them but which he kept for himself and
did not pay
over to the intended beneficiaries. He further conceded that at this
meeting, at which one Malcolm Goodford and James
Murray were present,
the accused asked him (Schultz) to collect the amount of R1,5 million
owed to him by Nassif in return for
commission and he agreed. This is
the meeting where Mickey was asked to organise a bar brawl with
Nassif on behalf of Roger Kebble.
[101] Cross-examination further
elicited a strange tale involving one Adv Barry Roux who happened to
be Nassif’s advocate
: There was a meeting at Newscafe, Sandton
attended by Nassif’s attorney, Tamo Vink and his advocate Barry
Roux as well as
his (Schultz) attorney, Small-Smith where he was
persuaded to be a
section 204
witness. What is perplexing is the fact
that it emerged during this trial that Adv Barry Roux was at some
stage the prosecutor
of a case where Nassif was facing fraud charges
and in which the State withdrew all the charges against Nassif.
There is further
evidence that Nassif had received substantial
amounts of money which were to be used to bribe the prosecutor,
magistrate and investigators
in that case. It is not clear if the
bribery ever took place or not but clearly this is a scary state of
affairs in relation to
this country’s criminal justice system
if it is true. At some stage Schultz ascribed these allegations to a
case involving
Roger Kebble snr.
[102] The witness further stated that when Nassif re-assured him
that former South African Police Commissioner, Jackie Selebi,
would
take care of and/or smooth over any problems that might arise
following the shooting to death of Brett Kebble, the accused
was not
present or involved.
[103] During re-examination Michael Schultz explained that he agreed
to help retrieve the monies owed to the accused from Nassif
because
despite any fall-outs that may have occurred he (Schultz) was the
only person who could talk to him (Nassif) and make him
see reason.
[104] The next two witnesses,
Nigel Mark Mc Gurg and Faizel “
Kappie
”
Smith corroborated the version given to court by Michael Schultz both
in relation to the Mildenhall shooting and Brett Kebble’s

death. I will not regurgitate their versions save to highlight a few
aspects. I will start with Mc Gurg. He was also a
section 204
witness.
[105] The thrust of his evidence
was that he and Schultz were feared hustlers in the nightclub
bouncing business world and they
had a reputation preceding them.
They both branched into the security industry and ended up both
working for Nassif at CNSG Security.
Clint used them as “
button
men
”
in
Cosa Nostra
or Mafioso
lingua
franca. He said they were the “
muscle
”
of his business and he used them to intimidate people or do his
“
dirty
”
work. They were his enforcers and money collectors from people owing
him money.
[106] Nigel also corroborated
the incident involving Mildenhall in Cape Town. He added that after
the two coloured men shot Mildenhall,
they were paid their balance of
R100 000,00. They had been paid a R50 000,00 deposit. One of the
guns they used was the Smith
& Wesson .40 that Kappie brought
along to Cape Town. After the shooters were paid, the gun was
retrieved from them and dismantled.
The pieces were thrown out of
the car window on their way back to Johannesburg. The other articles
taken from Mildenhall were
burnt under a bridge along the freeway.
Only his driver’s licence was kept as proof that the job was
done.
[107] He confirmed Mickey’s
version that he, Mickey and Kappie were not paid in cash for the
Mildenhall job. They were satisfied
with the recognition and respect
they would get as “
men
of action
” and
the fact that Brett Kebble would take care of them in future.
[108] Regarding the Brett Kebble
murder Nigel corroborated Michael Schultz’s version. This
witness did not mince his words
about his hatred for the accused : He
particularly disliked the way in which the accused referred to him
and his friends and colleagues
as “
boys
”
and the expression he used when he came across them in which he
(accused) would say –
“
Show
me love, show me love.
”
[109] He particularly hated the
fact that the accused was, according to him, “
Loud-mouthed
”
i.e. he talks too much, hence he was particularly pissed off when he
realised that the accused knew of the Brett Kebble
plan. He was
however assured by Nassif that the accused was an important cog
within their nefarious machinery in that he was in
charge of the
finances.
[110] He corroborated the story of how Brett Kebble was killed.
According to him, when Michael Schultz’s gun ultimately
went
off, he fired –
“
…
5-6-7-8-shots …
”
into Brett Kebble’s body.
[111] Nigel got or received all
his instructions from Mickey, never from the accused or any other
person. He testified that they
started exerting more pressure on
Mickey to demand their money from Nassif after learning or deducing
that he was about to emigrate
to the USA. That is, according to this
witness, when they met with the accused at the Newscafe, Sandton and
ultimately, The Grand,
in Rivonia and the accused allegedly told them
that he (i.e. accused) had paid over the monies due to them to
Nassif. That is
also when the accused told them he was owed R1.5
million by Nassif and wanted help to retrieve it. That is again when
the accused
suggested that Nassif be led into some bar brawl.
[112] He confirmed the pointing outs that he made to the police that
appear in the photo-albums that form part of the Exhibit
“D”
bundle admitted into the record of proceedings.
[113] Nigel also was never arrested. He and Michael Schultz shared
one attorney, Mr Small-Smith. He called them in together with
Kappie
and told them of the
section 204
offer from the Scorpions that came
in through Nassif’s legal representative, Adv Barry Roux.
After initially declining the
offer Small-Smith convinced them it was
the only way out if their wanted to avoid prison.
[114] He made his initial
statement in the presence of Mickey and Kappie to Small-Smith on 14
November 2005 and the
section 204
one to the Scorpions on 26 January
2007.
[115] Nigel testified that he assumed there was a relationship,
business and/or otherwise, between the accused and Nassif because
the
accused frequented the premises of CNGS. He even thought he was a
director.
[116] Nigel in actual fact said
almost nothing that implicated the accused with any of the offences
in the indictment herein. Of
peculiar interest is the fact that right
at the beginning of cross-examination by Adv L Hodes SC for the
defence, apart from conceding
that the accused never conspired with
any person to murder or injure any of the people mentioned in the
charges herein or attempting
to murder Stephen Mildenhall or
procuring or setting up the death of Brett Kebble or actually
murdering Brett Kebble, upon a simple
question by the defence as to
how he knew that the accused controlled the payments due to the
Kebble or Stratton enforcers, his
reply was that The Scorpions (SA
Police Unit that has been changed into The Hawks) highlighted to him
during his consultations
with them or interrogation that he should
all the time emphasise that the accused controlled the purse strings
of the Kebbles and
that he actually had a meeting with him where he
(accused) told him the money due to them for the Brett Kebble murder
was paid
to them by him (accused). Unfortunately under further
intensive cross-examination this witness admitted that the accused
was according
to him not involved with the issues contained in the
indictment herein. If what he said earlier is true, then the
Scorpions were
busy misleading the court on this aspect.
[117] Despite the above
concessions counsel for the accused proceeded to discredit Nigel
thoroughly, highlighting inconsistencies
and contradictions in his
version in court
vis-à-vis
his written statements and extracting the existence of his fervent
hatred for the accused. This witness totally negated what he

testified to in chief, even coming up with different versions of the
same aspects in his answers to questions. To avoid further

embarrassment he responded to the barrage of question by stating that
after the death of Brett Kebble he took a conscious decision
not to
read newspapers, or listen to news broadcast, both on the radio or
television. He told that as a result he was not aware
or up to speed
with how the death of Brett Kebble was dealt with in the media.
[118] Nigel further confirmed that it was their habit as a closed
group, not to use their own cellphones to communicate with each
other
or discuss deals and jobs. In this instant, to call accused he used
his registered personal phone. He agreed that if the
accused was
involved in the conspiracies he would not have used his personal
cellphone.
[119] Nigel was convinced that all the money Nassif paid to them was
given to him by the accused, hence he detested him for no
paying them
on time. The source of his belief was Nassif. According to him
(Nigel) Nassif told them all monies from the Kebbles
or Stratton came
to him through the accused.
[120] Actually Nigel was supposing or speculating about all these
connections he ascribed to the accused. His catch phrase or
language
was that Nassif will confirm all the above concerning the accused,
when he comes to testify. Suffice to state here that
Nassif did not
confirm this version.
[121] As stated above Faizel
Smith aka “
Kappie
”
also a
section 204
witness corroborated Schultz’s evidence in
all material respects. He was taking his orders from Mickey and did
not connect
the accused in any way with the charges herein. He
confirmed the sequence of events as set out by Mickey in respect of
Mildenhall’s
shooting and Brett Kebble’s murder. It will
serve no purpose to repeat what he said here, save to state that he
expressly
exonerated the accused of any wrongdoing against all the
people mentioned in the indictment as victims.
Steven Craig Mildenhall
[122] His testimony was that during 2005 he was the CEO of Alan Grey
in Cape Town. He also occupied the positions of Chief Investment

Officer and portfolio manager. He met Brett Kebble a few times before
– around shopping centres and like places. Although
JCI was
not a client of Alan Grey, as investment officer he was interested in
companies like it.
[123] During 2005 around July, JCI and RGE were warned of possible
suspension from and by the Johannesburg Stock Exchange for
failing to
submit their financials. They were granted an extended period to do
so.
[124] During the above period
Steven Mildenhall or Alan Grey were contacted by Investec Bank and
they wanted him to evaluate the
recently discovered gold deposits at
Western Areas Gold Mine, another of JCI or the Kebble stable of
businesses. He was also doing
a due diligence on JCI and RGE
regarding a loan JCI and/or RGE had applied for at Investec Bank.
[125] While still doing this JCI and RGE were suspended by the JSE
on 1 August 2005. He stated that among his findings was that
JCI had
sufficient or a lot of assets but low liquidity, which could have
disastrous consequences if not harnessed or arrested
in time.
[126] He was mandated to evaluate JCI’s loan application and
make the necessary recommendations to Investec on the way forward.

Alan Grey recommended the loan but subject to the pre-conditions that
–
The board of JCI be re-configurated or re-constituted; and
Brett Kebble resign as Chairman and Board member of JCI, RGE,
Western Areas Mines as well as other companies in the Kebble

Stable.
[127] He (Brett Kebble) was removed from the Board of Western Areas
but remained on the Boards of the other companies.
[128] On 15 August 2005 he (Mildenhall) signed a letter recommending
a loan to JCI subject to pre-conditions. On 30 August 2005
the JSE
released the details of the loan to the public.
[129] On 31 August 2008 at the end of the day’s work he was
interviewed on national radio about the re-constitution or
re-configuration of the JCI and RGE Mine Boards. After the interview
he drove to his home in Claremont, Cape Town. Upon arrival
he opened
his electronic motor gates and drove into the driveway inside the
yard. At that very stage, before he could alight from
his car he saw
two men get out of a red car parked outside his yard. They ran to
and opened the small pedestrian gate at the entrance
and both had
guns in their hands. They pointed their guns at him and one of them
demanded that he empty his pockets and hand over
all the contents to
him. He complied, handing over to the man a wallet, car keys, house
keys and cellphone, among others. They
then ordered him to accompany
them but he did not comply. Instead he retreated, moving in reverse
towards a carport nearby. The
two men then opened fire, hitting him
three times on the area around his shoulders. He fell down and the
two men drove away in
their car. He was taken to the Claremont
Hospital where he was treated and released after 8 days.
[130] He considers himself fortunate because the injuries he
sustained were not of a serious or permanent nature and the only

complaint he still has is restricted movement around the shoulders.
[131] His house is situated next to a primary school.
[132] Cross-examination elicited the following:
132.1 Initially he thought his
shooting was a purely criminal act although he had some disquiet
about one of the guns having
is
Hi
had a silencer fitted to
it. To him, this was too coincidental with his dealings with the
Kebble business empire. He only connected
this shooting to the
JCI-Brett Kebble link when stories started hitting newspaper
headlines after Brett was gunned down.
He does not know the accused,
neither did he then, now or ever have any dealings with him, be
they personal or business related.
[133] Johanna Petronella Heynecke, Charl Johannes Naudé and
Hilda du Plessis were respectively, the Forensic Liaison Manager
at
Vodacom Cellular Services, Risk and Fraud Manager at Nashua Mobile
and Specialist Forensic Analyst at MTN Cellular Services.
[134] All three were called by
the prosecution to tender evidence about certain cellular phone calls
which were made to or from
certain cellular phones registered to or
in the names of the accused herein and/or Nassif, Schultz, Nigel,
Brett Kebble and CNSG.
Their testimonies mainly traced how the
various incoming or outgoing calls from those cellphone numbers were
received at or by
specific base stations or towers situated at
different locations ranging from Alberton in the East; Comaro, Glen
Vista and Rossettenville
in the South of Johannesburg; Anglo Plat
Head Office, Zoo Lake, Newlands, Chissel Hurston, Wemmer and Auckland
Park near the Johannesburg
City centre and Oaklands, Inando,
Wanderers, Illovo, Fernwood, Forest Hill and Empire to the North of
the city as well as Keurboom,
Fernwoods, Newlands and Cape Town
itself in the Western Cape.
[135] All these “
experts
”
in communications could not say who was using any particular
cellphone at the time its use was picked up by any of the base

stations or towers. The fact that a call may jump from a principal
cellphone registered in the names of a particular user to a
secondary
phone, mainly a car phone, used by such user did not help the
situation.
[136] They could not exclude the
manipulation of cellphone records by unscrupulous persons. Further,
contrary to their assurances
that cellphone records were only issued
out upon receipt of a court issued
section 205
subpoena,
cross-examination of Hilda du Plessis, for example, elicited evidence
to the effect that there were instances where she
issued out such
records well before a
section 205
subpoena was even applied for :
She relied on the
bona
fides
of a police
officer in a faxed message, that she send out to the latter the
cellphone records and the requisite
section 205
subpoena would follow
later.
[137] Ms Heynecke for instance
testified that she had furnished the police with about 50 lever arch
files full of cellphone records
in respect of various people. Nobody
could shed any light to this Court what could have happened to all
that data because only
a handful of data was handed in and used as
exhibits in this case.
[138] Abuse of the system by the
police was demonstrated by Hodes SC during cross-examination of these
cellphone “
experts
”.
For example, he elicited evidence to the effect that cellphone
records of the accused’s attorney; himself, Hodes
SC, accused’s
counsel herein; his (Hodes’) father’s, also an advocate
who has nothing to do with this case; other
clients of accused’s
counsel, Hodes SC like one Peter Skeet; phones of private attorneys’
firms and private investigator
Warren Goldblatt; among many others,
were subpoenaed and obtained by the police from the cellphone
companies.
[139] This elicited a question from me at one stage to the effect
whether if and when this country’s State President’s

phone records were subpoenaed, whether they (the cellphone companies)
would issue them out without much ado. The answer was that
those
records would be extracted and handed over without asking another
question.
[140] It is my considered view that if this state of affairs did
occur or does occur and is allowed to persist, WE SHOULD ALL
BE
AFRAID, VERY AFRAID!!!
[141] The
prima
facie
view of this
Court at the time the evidence of cellphone records was led was that
there would be evidence led later that would
causally connect the
accused herein with one or more of the transgressions set out in the
indictment herein through this type of
evidence. With hindsight, it
appears to one as if the State was placing booby traps along the way
the prosecution expected or
anticipated or hoped the accused would
travel in the hope that if he does, he may detonate any of the
explosives so laid out in
anticipation. It is like covering a
roadway with rocks in the hope that a certain motor vehicle would be
travelling that roadway
and may per chance, in the process of
negotiating those rocks, damage its sump on one of them and travel no
further. By the above
I mean, when one looks at the evidential value
of the cellphone records, one can be excused for thinking that the
evidence was
placed on record in the hope that when the accused does
cross the floor to testify in his defence, he may tie himself in
knots
or trip on one or more of such evidential material.
[142] The above is but a hunch that flashed across my mind. It is
not a finding of fact or law I am making regarding the proof
of guilt
or otherwise of the accused.
[143]
Charl Johannes
Naudé’s
evidence
does not take the matter any further. He is employed by Nashua
Mobile in Midrand as a Risk and Fraud Manager. He is
with that
company in the same category for 9 years 6 months. He deals with
court testimonies regarding authenticity of accounts
and also takes
care of risk matters including fraud internally and externally.
[144] His testimony was short and sweet : He was subpoenaed two days
before he came to testify on 16 August 2010 about the ownership
of
cellphone numbers 082 805 6286, 082 807 7752 and 083 633 1803.
[145] The circumstances under
which he was subpoenaed were as follows:
On 12 August 2010 he was telephoned by the Investigating Officer in
this case, Colonel Van Heerden, about him coming to testify
at
court on 16 August 2010.
He allegedly was served with a subpoena on the strength whereof he
checked through Nasua records and found out that the abovementioned

three cellphone numbers were registered to Consolidated Mining
Management Services. Under cover of a statement he submitted
the
data sought to Col Van Heerden.
He further stated that the above numbers were allocated to users as
follows:
082 805 6286 was allocated to John Stratton;
082 807 7752 was allocated to a
Kebble; and
083 633 1803 was allocated to one Wilson whose full and further
particulars he did not know.
[146] His was a simple open and
shut version indeed but cross-examination elicited a different story.
It can be summarised as follows:
It emerged that this witness
was previously in the SA Police Force for 11 years and worked with
the Investigating Officer, Col
Van Heerden in the same Serious and
Violent Crimes Unit. It further emerged that the subpoena he used
as authority to provide
personal client data to the investigators
in this case was not a
section 205
one but an ordinary witness
subpoena – contrary to the prosecution team’s argument
and submission that such information
can only be accessed through a
section 205
subpoena.
The witness stated that he deliberately waived the 14-day time
frame allowed for a witness on subpoena to come and testify
in
court, hence he was approached on Saturday and he accessed the data
and was in court testifying the very following Monday.
It also emerged that the number
allocated to John Stratton has since been re-allocate and the
witness does not know to whom.
Even though according to him the
number was in Stratton’s names until 4 August 2008 he does
not know who used it all
the time.
In respect of the number he
said was allocated to a Kebble he could not say if it was Roger
Kebble or Brett Kebble. Worse still,
it was used by that Kebble
from 10 January 1996 until 30 January 2003. He could only assume
that since normally or usually
if a contract is not renewed, it
becomes a monthly one, that that may have been the case with this
number without any substantiation.
This reply is in spite of the
fact that he (witness) testified that he obtained his information
from Nashua’s data base.
How a continued-use-phone is not
detailed on this data base is so ridiculous that this Court tends
to agree with the counsel
for the defence that this (witness) could
not have assessed proper and/or appropriate data. This aspect was
aggravated by
basic errors or mistakes on the alleged subpoena
itself : It was allegedly issued, on the face of it on 12 August
2010. His
accompanying statement however is dated 13 July 2010 and
attested to on a date that is still to come, i.e. 16 September
2010.
It will be difficult indeed for this witness to convince
this Court he was telling the whole truth.
He further stated that the 082
807 7752 number was twinned to a car cellphone with numbers 082 807
3694 but could not explain
why he did not testify about it, let
alone not produce data related to this twin phone. This, despite
the fact which he admitted,
that the twinned phone’s billing
was incorporated into the main cellphone.
It further emerged from this
witness’s testimony that the number 083 633 1803 which
according to his records was used
by one Wilson, started operating
on 18 January 2000 until 2 February 2003 when the contract lapsed.
If then went onto a month
to month use. He does not know who
Wilson was. He could not explain the inconsistent and clearly
wrong dates on his sworn
statement, neither could he explain why he
issued sensitive data on the strength of an ordinary witness
subpoena. He consequently
was at sixes and sevens when the defence
put it to him that he did not follow his department’s own
protocols and was
clearly doing a favour to an old colleague. He
could not produce any documents generated from his company’s
data base
to substantiate his evidence in court. It was not
surprising when he answered, “
…
Yes
”, when it
was put to him bluntly that he was lying.
During re-examination, the prosecution elicited evidence to the
effect that a subpoena was not necessary to access and obtain

client data from Nashua Mobile, which piece of evidence negated
what the prosecution had been insisting on to be the correct

procedure, namely, that a
section 205
subpoena was essential before
such sensitive client data can be accessed and/or released.
[147] Naudés evidence
should be placed alongside that of
Linda Maureen Viera
an employee of Consolidated Mining Services Ltd as both purported to
testify about almost similar, if not similar cellphone numbers.
Her
testimony can be summarised as follows:
She is an assistant director at Consolidated Mining Services Ltd, a
subsidiary of JCI Ltd, since 1996. Brett Kebble was the
CEO of the
company and also director thereof.
She was approached on 19 August
2010, i.e. the Thursday preceding Monday 24 August 2010 on which
latter date she was testifying,
to come and confirm ownership or
registered use of the cell numbers 082 805 6286, 083 633 1803 and
082 807 3694. She has,
attached to her written statement dated 24
August 2010 (date of evidence in court) two sheets marked Annexures
or Exhibits
“U2” and “U3) which contains
cellphone numbers which she, in the course of her employment
applied for and
noted in the records of Consolidated Mining
Services Ltd. Exhibit “U2” contains 27 cellphone
numbers with their
users recorded alongside them. Exhibit “U3”
contains 34 such numbers. The numbers on “U2” and “U3”

overlap, i.e. there are some that are on both exhibits.
According to her, number 083
805 6286 was allocated to John Stratton, number 083 633 1803 was
allocated to Brett Kebble although
it was applied for in the names
of a fictitious or non-existing “
Wilson
”.
This Wilson neither works for the company nor exists. Number 082
807 3694 was allocated to Brett Kebble also. She
testified that it
was standard practice at her company, after one of JCI’s
mines, Westonaria Ltd, encountered problems
of liquidity or with
the SARS, for Brett Kebble’s personal assistant, Rita
Mininghouse, to instruct her to apply to service
providers for
cellphone contracts in the names of fictitious persons and she
complied. To illustrate this:
On Exhibit “U2
”
Number 082 809 4157 is supposed to be used by one Du Plessis, whereas
in actual fact it was used by John Stratton. Du Plessis was
a
fictitious person.
As stated above 083 633 1803 was used by Brett Kebble although
registered to Wilson who is a fictitious person.
In addition, Brett Kebble also used number 082 941 4910.
On Exhibit “U3
”
Number 084 601 0250 is supposed
to be used by or registered in the names of “
Brown
”.
However, Brown is a fictitious person. The cellphone was used by
Brett Kebble.
Number 083 628 6010 is registered
to “
Flesch
”
who is a non-existent person. It was used by Brett Kebble.
Number 083 633 1842 is registered
to “
White
”
who is also a fictitious person. It was used by Brett Kebble.
[148] This witness testified to the effect that she was certain
about what she said because she was the one who applied for the
phone
contracts and even paid the bills out of the company coffers. She
even regularly updated the cellphone user list each time
a new
contract is added or an existing one is terminated.
[149] Under cross-examination this witness conceded that although
she allocated specific cellphones to specific people she could
not
vouch that those cellphones were utilised by the allocatees. She
also agreed with Andrew Minaar’s testimony that there
are many
more cellphones which included pay-as-you-go ones which are not
recorded on Exhibits “U2” and “U3”.
She could
equally not say whether or not Messrs Fikile Mbalula and/or Mcwana,
both of the ANC Youth League were users of some of
the cellphones.
[150] In answer to questions for clarity by this Court the witness
stated that all the contracts’ addresses were Consolidated

Mining Services Ltd. Rita Mininghouse passed away during 2009.
[151] The State also introduced the evidence of one Steven Colin
Sanders, who had been mentioned repeatedly by the prosecution’s

main witness, Clinton Nassif. His version can be summarised as
follows:
He was employed at CNSG as the
operations manager during the year 2005. Before that he was an
employee of AIN Security which
was also owned by Nassif. Prior to
all the above employments he was a policeman who was attached to
the then specialised units
in the old South African Police.
Koevoet’s name came up in evidence. He met Nassif when he
was still a policeman and
he renewed that acquaintance in 2004 when
he worked with or under him at AIN Security. Koevoet was a
counter-insurgency specialised
and highly trained paramilitary unit
of the police in the old days which was deployed in war-zones in
Namibia and Angola.
He met the accused through Nassif at a golf course during 2004. He
stated that he had accepted employment overseas in 2006
and was
bidding Nassif farewell when those introductions were made.
One can assume that this witness was made an offer he could not
refuse to change his mind about working overseas and instead
work
for Nassif at AIN and CNSG because that year, 2004, when he was
supposed to go, he instead started working for Nassif.
He met John Stratton towards the end of the year 2004.
He was introduced to Brett
Kebble by both Nassif and Stratton after seeing him on three
previous occasions in and around their
offices at the security
companies. He also knew one Maro Sabatini through Nassif.
According to him, during August 2005 Nassif
enquired from him if he
knew of any pill that could induce a heart attack but which would
not be detected during a
post
mortem
examination
or autopsy. Without asking who the intended user of the pill was
he promised to make enquiries about it. He in
fact did not
initially think Nassif was serious and he forgot about it, only to
be reminded about it two (2) weeks thereafter.
He stated that
Nassif told him that he was taking too much pressure relating to
that pill’s availability from Brett Kebble,
John Stratton and
the accused. It was only at this stage that Nassif told him the
pill was intended for Brett Kebble at his
(Kebble’s) request
and that Brett Kebble was dead earnest on obtaining the pill to
kill himself but in such a manner
that his insurance companies
would not suspect suicide and would thus pay out death benefits to
his family.
He further testified that
Nassif asked him if he was prepared to “
make
a hit
” on
Brett Kebble, i.e. kill him. He refused.
Two weeks after the above
encounter he happened to be at the offices of one Hennie Buitendag,
the financial director at JCI
Limited, when he met John Stratton.
The latter called him aside and asked him if he was able to find
“
the stuff
”.
He immediately assumed and knew he was referring to the heart
attack inducing pill. He told him he had not. Stratton
then
received a cellphone call. He (Sanders) went to a newspaper stand
and started paging through a magazine when Brett Kebble
walked in
and asked John Stratton if Nassif had found what he was looking
for. Stratton responded by telling Brett Kebble that
he had just
asked him (Sanders) about it and that they were still looking for
it. Brett Kebble became upset and walked away
in a huff.
The witness further stated that in fact he never endeavoured to
look for such a pill.
He also recounted how a relationship of such closeness as that of
father and son developed between himself and Stratton. He
would
even pick him up at the airport at his bidding whenever he came up
to Johannesburg from Cape Town.
151.10 One afternoon in August
2005 Nassif asked him to accompany him to Cape Town, as Stratton
wanted him to come there. He said
Nassif told him that he also did
not know why he was summoned to Cape Town. They indeed flew together
to Cape Town, the same afternoon,
booked into a hotel where they left
their luggage and drove to Stratton’s house in a hired car.
Stratton met them outside
his house and invited them inside. When
standing in the kitchen Stratton told Nassif that he wanted him to do
something for him
urgently. They stood aside, but within ear-shot,
and he could hear Stratton talk about Mildenhall, an address and
words “
…
Done immediately
”.
After a while they walked towards where he was reading a book about
Sushi making. He (Sanders) then asked him if he knew
how to prepare a
sushi, whereupon he (Stratton) walked behind a counter nearby and
took out a collection of sushi knives from a
place there. He
(Stratton) selected the smallest of those knives and pushed it over
to Nassif across the table. Nassif picked
it up. Stratton wrote an
address on a piece of paper and handed it over to Nassif, who in turn
handed it to him (the witness).
151.11 As they drove away from
the Stratton home, Nassif told him that the Mildenhall Stratton was
talking about was a person who
was going to testify against Brett
Kebble in the near future and that the order from Kebble and Stratton
was that he should be
incapacitated for about or at least 3 months so
that he would not testify. He (Stratton) wanted him (Nassif) to go
and so incapacitate
that Mildenhall the same evening.
On their way back to their hotel they drove past the address
Stratton gave to Nassif.
He (witness) told Nassif that he wanted no part in that scene.
Nassif also told him he would not comply with Stratton’s

order. That he would later talk to Stratton to devise another plan
to execute his wishes. They then flew back to Johannesburg
the
very same day.
A couple of weeks later he read in the papers about Stephen
Mildenhall having been shot in or on the shoulders. At the time
he
did not link that shooting with what was said on the day he was at
Stratton’s Cape Town house with Nassif. Only when
this case
started did he realise that Mildenhall’s injury was related
or connected to that discussion.
This witness further testified
about the various meetings that he had with Stratton, Nassif,
Sabatini as well as Brett Kebble,
the latter only once. The
meeting with Brett Kebble was on a day when he had driven Nassif to
a meeting at Brett Kebble’s
Inanda house. Nassif’s
attorney, Tamo Vink and Stratton as well as the accused were also
present and their discussion
revolved around Kebble’s
troubles with the SARS about his taxes. At a stage during that
meeting he heard Stratton talk
about a R12 million that was
allegedly given to Jackie Selebi, the then SA Police Commissioner
to make their problems disappear.
He was agitatedly demanding the
return of that R12 million from the accused.
He professed ignorance of any issue to be discussed in Cape Town.
He also denied any dealings with Chubb Security or having
at any
stage accompanied Nassif and the accused to Cape Town to discuss
any Chubb issue or business with Brett Kebble or Stratton
or with
both of them together.
According to him or his observations the accused had good relations
with Kebble, Stratton and Nassif. He had in the past observed
that
Brett Kebble would give instructions to Stratton who in turn would
give them to the accused. Hence he said the accused
seemed to
operate like a middle man in the dealings between Brett Kebble,
Stratton and Jackie Selebi, the ex-National Police
Commissioner.
He went on to state that the accused would visit or be with Nassif
at least once a week. His statement was made under
section 204
of
the
Criminal Procedure Act and
it was also used during the criminal
trial of Jackie Selebi where at the end thereof he was given
indemnity from prosecution.
[152] Under cross-examination it
emerged that this witness swore to two statements about the same
issues. His first statement was
identical to the one made by Nassif,
full stop, comma and all, differing only on their names, identity
numbers, addresses and contact
phone numbers. It further emerged that
he was, during his police days, a highly trained specialist on
firearms, ammunition, explosives
as well as combat and
counter-revolutionary and intelligence work. He acknowledged being
an expert on surveillance and other under-cover
operations. He had,
in his work at AIN Security and CNSG, followed people, monitored
their movements, taped their conversations
and intercepted their
messages, among others. He had no attorney or counsel of his own,
hence he utilised Nassif’s attorney
and counsel, Tamo Vink and
Adv Barry Roux respectively, especially when he made statements to
the police. Hence even his statement(s)
was completed and sworn to
at Adv Barry Roux’s chambers at Sandton, Johannesburg.
[153] This witness did not implicate the accused in any manner in or
on any wrongdoing, let alone anything connected to the charges
in the
indictment herein. He further stated that the accused never discussed
anything with him at any stage, specifically, not
the object or
subject of the charges herein.
[154] The evidence of Dominic
Ntsele was also led.
He is a media relations officer and Brett Kebble was one of his
clients from the year 2000. They would meet weekly whenever
Brett
was in Johannesburg. At times he would meet him at his (Kebble’s)
Cape Town residence. They also communicated
by phone, SMS and text
messages. The regular number of Brett that he used and knew was
083 267 6981. At times they would
use Brett’
s 082
-number,
082 087 7752, which was a secondary car phone linked to his main
cellphone.
He visited the deceased the day he was killed : In fact they had an
appointment for the previous evening, i.e. 26 September
2005, but
it fell through or did not materialise because Brett did not turn
up.
He did not know the accused before this Court very well : he only
met him at Brett’s funeral. Mickey Schultz, Nigel,
Nassif
and Kappie Smith were unknown to him.
Under cross-examination the
following came out:
154.4.1 His police statement looked strikingly similar to that of Mr
Minaar, Brett’s butler in type-set, format and paragraphing.
154.4.2 At no stage did the deceased tell him that he wanted to die.
154.4.3 On the night of his
death the deceased was cheerful. He found him playing on his piano.
He looked like he had taken alcohol
but his motor skills were not
impaired. He said the deceased had a huge capacity for alcohol but
during his presence on this day
he drank from one red-wine bottle
only.
154.4.4 He was so jolly on the
night that he even suggested they drive together to meet one Sello
Rasethaba but he politely declined.
He summised that had he agreed,
he would also have been killed because the deceased was shot after
they separated on leaving his
house – he (witness) going home
and the deceased going to meet this Sello. The deceased even
personally prepared the steak
and chips they both had for dinner that
night.
154.4.5 The witness reiterated and emphasised that he was strict on
time and appointments, hence he sent the deceased a strongly
worded
SMS after the latter stood him up on their appointment on 26
September 2005. He would not compromise his reputation by
allowing
himself to be persuaded or cajoled into dovetailing his story with
that of others especially where he knew he would not
be telling the
truth.
[155] Alexis Dimitri Christopher
also testified for the State and he stated the following:
155.1 He is the owner of Assagi
Restaurant at Hyde Park. He knew the accused by coincidence after
one of his employee’s
vehicles collided with the accused’s.
After that they became friends.
He knew Brett Kebble from their
youth days when they both lived in Welkom, Free State. He does not
know Brett Kebble’s
home in Johannesburg save the fact that
it is situated somewhere in Hyde Park, Johannesburg or Illovo. He
also knew Clinton
Nassif.
After his acquaintances with
the accused they all developed a habit of meeting for dinner every
Monday at his Assagi Restaurant
in Hyde Park and thereafter going
to The Lounge Strip Club in Vorna Valley near Sandton for
entertainment. That was himself,
accused, Brett Kebble and other
friends.
On 26 September 2005 which was
a Monday he met with accused at his Restaurant as usual for dinner.
During the dinner accused
started receiving a string of calls on
his cellphone. Upon his enquiry as to who was calling him he said
it was Brett Kebble.
He was taking those calls outside. After an
hour he (accused) left, saying he was going to meet with Brett
Kebble. He had
not yet eaten his dinner according to this witness
at that stage.
After dinner he and his
remaining friends went to “
The
Lounge
” as
usual. About 1½ hours after their arrival there accused
joined them. He asked the accused what the problem
was he was
solving with Brett Kebble and he told him Brett owed him money and
he was sorting that aspect out.
He met Clinton Nassif through
the accused some years prior to September 2005. The last time he
saw him was during October 2006
just before he (Nassif) was
arrested for fraud.
At some stage after the accused was arrested following on Brett
Kebble’s death Nassif asked him to phone his (accused’s)

ex-wife, Viviene, and call her to the parking lot of the shopping
centre where his restaurant was. On (Nassif’s) request
he
told Viviene that he (Christopher) wanted to see and talk to her.
She came and Nassif talked to her while he stood a few
paces away.
After that Viviene left.
He last saw the accused some 8
years back and he never told him about this meeting he had with his
ex-wife. Arithmetically
this last aspect cannot be correct as he
saw him the day before Brett’s death, i.e. 26 September 2005.
[156] Cross-examination revealed the following among others:
This witness did not mention
the details he recounted about the restaurant’s happening
when he made his statement to the
police. Neither did he mention
in his statement to the police that he introduced accused to Guy
Kebble, Brett’s brother.
On the above and many other aspects
that were not recorded in his written statement to the police, this
witness kept on answering:
“
I
was not asked to mention that
.”
He retracted some if not most of what he said in chief, for
example:
156.2.1 At this stage he said in
fact accused ate half way through his dinner, in contradistinction to
what he said in chief that
he did not eat his dinner at all.
156.2.2 Nearly all that he said
in court did not appear in his statement to the police, e.g. he never
mentioned the Welkom story
of growing up together, did not mention
that he visited the accused in custody, etc.
156.2.3 What is material to the
decision in this case is his statement that when he asked the accused
why he was in custody, he
told him he also did not know.
156.2.4 It emerged that this
witness deliberately lied to the accused’s ex-wife, Viviene,
about himself wanting to talk to
her whereas he knew that it was
Clinton Nassif who wanted to ask her to tell the accused to
co-operate with the Scorpions and dovetail
his version with his
(Nassif’s).
156.2.5 Immediately hereafter
the witness contradicted himself materially by denying telling
Viviene that he (Christopher) wanted
to see her. It also emerged
that his restaurant was situated on the ground level of the Hyde Park
complex but he asked her to
come to the top or 6
th
level for this meeting.
156.2.6 When cross-examination
became too hot for him, this witness resorted to replying with “
I
don’t know
”
even to aspects common enough to be within his personal knowledge.
He professed not to know what car Viviene was driving,
how long they
talked and at what stage she left. He even denied Clinton Nassif and
Viviene having a conversation that night. Ridiculously
further, he
did not remember if he left them discussing and returned later. When
pressed further he conceded going to his restaurant
and returning
with a cold drink which Viviene was to take to the accused in the
cells together with a message. When asked what
message, he said he
did not know. At some stage he professed never having heard Clinton
Nassif tell Viviene to tell the accused
to brief Nassif’s
attorney Tamo Vink. But later he forgot the denial and testified
just as much. More information was dragged
out of this witness e.g.
the fact that Viviene told him to phone accused’s attorney
about any advice he had for accused,
the fact that this witness was
not only a facilitator of a meeting but an active participant in a
joint venture with Clinton Nassif
to convince Viviene to persuade the
accused to tell his story to the police the way Nassif did. This
witness stated that Hodes
SC in this case was representing the
accused at that stage but became tongue tied when Hodes SC put it to
him that he was not involved
at that stage. When he was forced to
concede more and more of what actually took place this witness
started being aggressive,
recalcitrant and downright angry. He even
stated that Brett Kebble was just a youngster in matters such as
these and Clinton Nassif
was a murderer.
156.2.7 He further stated that
it was Roger Kebble who insisted that he (Christopher) come forward
and be a witness in the eventual
trial of this accused. He is
uncertain but he thinks he must have told Roger Kebble about Clinton
Nassif’s role in Brett
Kebble’s death.
156.2.8 As the questioning
progressed this witness started showing streaks of one time siding
with the Kebbles and giving them
stories about Nassif and when he was
with Nassif he would be on his side and castigate the Kebbles. After
categorically denying
knowing a man from Dubai called Jay, as
questioning persisted he conceded knowing him so intimately that they
even intended going
into a business joint venture together. All of a
sudden, after professing not to remember who was at dinner with him
on the night
of 26 September 2005; he now remembered that this Jay
and one Simphiwe were some of the people there and that Jay may have
disclosed
the contents of their dinner table conversation about the
prospective Brett Kebble suicide or murder to others.
156.2.9 At the end of this witness’s testimony he had not
implicated the accused on any wrongdoing relevant to the charges
he
faces here.
[157] For reasons that will
become clear later in this judgment I am dealing with the evidence of
Brett Kebble’s butler,
Andrew Vincent Minaar just before
dealing with that of the principal state witness Clinton Nassif. His
testimony, just like that
of the other witness I have already dealt
with, have in it as a golden thread running through it, the hands of
the DSO attempting
or actually doing things to the statements for the
sole purpose of making sure that the accused herein is charged with
the crimes
he is now facing.
[158] He stated that he was
engaged by Brett Kebble as a housekeeper or butler during the year
2002. He knew the accused before
this Court as the latter was a
regular visitor to the Kebble house. He also knew –
John Stratton, who was a business associate and confidante of Brett
Kebble.
Clinton Nassif, who was also a regular visitor to the Brett Kebble
household and was also the security consultant who catered
for all
the private, business and family security needs of the Brett Kebble
household.
[159] According to witness
Minaar, Brett Kebble stayed at Cape Town and would fly to
Johannesburg every Monday or Tuesday and then
return to Cape Town on
Thursdays. Whenever he flew in he would use Lanseria Airport from
whence the family driver, one John or
Joseph would collect him.
[160] About a month before his death according to this witness,
Brett Kebble drastically changed the above and other well-established

routines : He would be alone in the house and the house would mostly
be without the usual stream of visitors that all were accustomed
to.
[161] On the date of Brett Kebble’s death the accused came to
the house at about 12h50. Brett Kebble also arrived from
Cape Town
at about 13h00. They had a short meeting in the patio and then left
together. He estimated the length of the meeting
to have been about 5
minutes. The accused also came to the Kebble home the morning after
the night Brett was shot dead; i.e. on
Wednesday 28 September 2005.
That was a day before Brett Kebble’s father, Roger Kebble also
arrived from Cape Town.
[162] According to Mr Minaar Brett Kebble used his Illovo,
Johannesburg house as home, office and meeting place for business and

leisure. This was despite the fact that he had his companies’
offices in Central Johannesburg.
[163] On 22 September 2005 in
the evening Clinton Nassif came to the Kebble house where he had
dinner with Brett, accused and John
Stratton. After the dinner the
guests left and Brett went to bed early. This was a Thursday. The
following day, i.e. Friday 23
September 2005, at 09h00 accused and
Nassif visited the house and had a brief meeting with him next to the
entrance hall. He does
not mention Stratten being present also.
According to this witness, the 23
rd
was the last day prior to Brett’s death that he saw John
Stratton at this home.
[164] He stated further that
Brett and Stratton had very close relations : they met regularly,
dined together and socialised together.
Even after Brett’s
death Stratton was always in and around the house chairing meetings
with various people, arranging Brett’s
burial and generally
attending to the office or paperwork there. Their friendship was
open for anyone to see. He (Stratton) even
over-seered the
destruction by fire of some of the documents in Brett’s house.
He also instructed this witness to burn some
of the documents, which
he (witness) duly did. According to him further, Stratton took some
of the documents to Cape Town with
him.
[165] Incidentally, Brett and Stratton had homes in both
Johannesburg and Cape Town and they would commute regularly between
the two cities, mostly in the company of each other.
[166] Mr Minaar stated that he was not aware of the nature of the
friendship or relationship between Brett and the accused and
as such
took it to be an ordinary relationship between two businessmen.
[167] After Brett’s burial the accused would still visit the
Kebble house but he did not know what he did or why he was
there.
[168] He continued to state that
about 2-3 weeks before Brett’s death he overheard a discussion
between Brett, Stratton and
the accused wherein the first mentioned
two were demanding that the accused refund a R15 million sum of money
given to him to pay
to former Police Commissioner Jackie Selebi for
certain services the latter was to perform for or on behalf of the
Kebbles. He
does not know how this discussion ended or whether the
money was ever refunded.
[169] Brett Kebble, according to
Minaar, never drove himself around. Joseph was his chauffeur. On 26
September 2005 and the date
of his death, i.e. 27 September 2005,
Brett gave his driver off from duty.
[170] The unusual thing he noticed on the morning of 27 September
2005 when he arrived for duty at 07h00 as usual, was to found
two
desert bowls and two spoons as if two people had eaten some desert
the previous night after he had knocked off and went home.
He stayed
at Townsview in Johannesburg.
[171] He concluded his evidence-in-chief by stating that he made
about 6 (six) statements to several Scorpions’ investigators

about this issue and that he no longer worked for the Kebbles.
[172] Under cross-examination the following emerged:
Of the six statements that Minaar allegedly made to the Scorpions
only three were given to the defence, according to his answers.
The first statement was signed
on 28 September 2005 before Captain Diederichs of the Scorpions at
the Kebble boardroom. This
statement described Minaar’s
residential address, his workplace at the Kebbles and his job
description there and does
not mention the accused.
The second statement also deals with issues that do not mention the
accused.
In the third statement that was
made or signed by Minaar on 8 October 2007 he for the first time
gives elaborate details that
involve the accused before this Court.
It also implicates former Police Commissioner, Jackie Selebi,
former Limpopo Premier
Ngwako Ramatlhodi who was at the time a man
widely tipped as the successor to the then Director of Public
Prosecutions, Bulelani
Ngcuka, also then Youth League President and
current (at time he testified) Deputy Minister of Police, Fikile
Mbalula and other
ANC or ruling party politicians with misdeeds or
improprieties. Mr Mbalula is presently the Minister of Sport and
Culture.
[173] For completeness sake and
for purposes of putting Minaar’s evidence-in-chief in
perspective I find it necessary to
summarise the contents of this
statement which was extensively referred to during cross-examination.
The contents of this statement
in my view may have a big impact on
whether a
section 174
applications should be granted or refused.
He was hired by Brett Kebble after reacting to a newspaper advert
for a butler.
During the last year and a half preceding Brett Kebble’s
death Jackie Selebi was visiting Brett’s Inanda, Johannesburg

house regularly. He was visiting once a month or once in six
weeks, every time at night and accompanied by the accused. This

witness never saw Clinton Nassif in the presence of Jackie Selebi
and the accused at the Kebble’s Inanda home. Selebi
would
usually visit on Wednesday or Thursday night when Brett Kebble was
in Johannesburg from Cape Town. Selebi and Agliotti
(accused) would
have dinner with Brett and John Stratton.
According to this statement Brett and Selebi were supporters of
Jacob Zuma, then contender for the chairmanship of the ANC
and
currently President of the RSA. According to Minaar Brett Kebble
was assisting Selebi with the Khampepe Commission the
principal
purpose being to ensure that Selebi ensures that the Scorpion
Police Division is disbanded.
Roger Kebble, Brett’s father also had dinners with Selebi
when the latter came to visit and he heard him one day say
to
Selebi:
“
…
by all rights I should be in jail …
”
Minaar did not know if Brett ever paid for holidays for Jackie
Selebi but he knew that Brett did pay for Ngwako Ramatlodi’s

holiday because the latter was tipped as a likely successor to the
then National Director of Public Prosecutions, Bulelani
Ngcuka.
About 3 to 4 weeks before
Brett’s death he was surprised to see Brett pack his
collection of 4-5 watches in an Investec
box and hand them to
Stratton to take to Cape Town for him. According to him this was
out of character with the two men’s
usual habits or practices
because the accepted and usual practice was for them to always
travel together from Cape Town to
Johannesburg, have dinner
together at Brett’s Inanda home before Joseph (Brett’s
driver) drove Stratton to his
Saxonwold home. Even when they were
to return to Cape Town Joseph would collect Stratton from his home,
bring him to Brett’s
Inanda home before driving them to
Lanseria Airport where they would fly in Brett’s private jet.
Brett incidentally had another
house at Melrose, Johannesburg in addition to another at Illovo.
On 22 September 2005 which was
a Thursday, in the evening Brett had a short dinner with the
accused, Stratton and Clinton Nassif
but contrary to his accepted
or known habit Brett did not fly to Cape Town that evening. He
remained at the Inanda house. The
following day he held a short
meeting with Stratton, the accused and Clinton Nassif. Only then
did Brett and Stratton leave
for Cape Town thereafter. That
meeting lasted for about 10 minutes.
Brett arrived from Cape Town on
Monday 26 September 2005 at 13h00. Stratton was not with him as
usual and this was very peculiar
and noteworthy to him. He found
Clinton Nassif and the accused there. They had arrived just before
he did. They had a short
meeting and accused and Nassif did not
stay for lunch. Brett instead was later joined for dinner by one
David Gleeson. They
ate prawns. At that dinner he overheard Brett
telling Gleeson that he was going to meet one Dominic Ntsele at a
Japanese Restaurant
at Norwood and then meet with one Sello
Rasethaba in connection with his son who was somewhat involved with
some drugs issue.
He only went home at about 20h00 after Brett and
Gleeson had left, he did not know where to.
173.10 On 27 September 2005 i.e.
the day Brett was killed, Minaar as usual arrived at the house at
07h00. At about 08h30 Dominic
Ntsele arrived but Brett asked him
(Minaar) to tell Dominic to come back later and the latter left. At
about 11h00 Brett came
downstairs and did not have his breakfast,
complaining about an indigestion which he ascribed to the prawns he
had the previous
night. He instead mixed himself 2-gins and tonic,
which according to him, was unusual as he never drank alcohol that
early.
173.11 There were no other visitors that morning until Gleeson and
one Martin arrived for lunch.
According to him Nassif never turned up at that house that morning.
Gleeson and Martin left at 14h00.
At approximately 15h30 one Sillo Burini came to the house and at
18h30 or 19h00 Dominic also arrived for dinner with Brett
Kebble.
He prepared them steak and chips which Brett took with wine. He
does not remember if Dominic drank any alcohol at
that stage.
Dominic left at 20h30 and Brett
also left the house for Sello Rasethaba’s house. What
surprised him is that Brett was
not wearing or carrying his jacket
as he usually and reverently did whenever he went for dinner and
his shirt sleeves were
rolled up, which was taboo for him on such
occasions, neither did he carry a box of chocolate or a bottle of
wine as a present.
He also surprisingly for Minaar, complemented
him for the dinner. All the above, according to Minaar, were out of
character
with Brett Kebble.
What deepened the mystery
according to this witness was that despite Brett Kebble having left
home without his jacket, the following
morning when he saw the
pictures of his car after he died the previous night, his jacket
was inside his Mercedes Benz. Worse
still, Joseph had cleaned this
car before he left and he would have removed the jacket from the
car if he found it there.
The day after Brett Kebble’s
death, i.e. 28 September 2005 Clinton Nassif offered Minaar a job
as a caterer at his business
premises. He also informed him that
he (Nassif) intends buying a Nandos Fried Chicken franchise as well
as build a conference
centre next to his existing business. He
also employed Brett’s maid since Brett’s death. When he
(Nassif) told
him not to tell the police, especially Col
Diederichs, anything about Brett Kebble ever meeting with Jackie
Selebi, he realised
that he was busy trying to buy his silence.
In his statement Minaar further
states that in the week following Brett Kebble’s death John
Stratton came to the house
and removed all items and documents from
the safe. He destroyed some documents and took others away with
him. He professes
not to have any idea about the contents of the
documents destroyed or taken away even though he testified that did
some of
the burning himself.
He further stated that he was interviewed by Adv (former Judge)
Heath and his son Marius as well as one Klatzow : He was
asked
about what he knew about Brett Kebble’s death. Marius even
took him aside and asked him what he thought of Clinton
Nassif or
his possible involvement in Brett’s death. They warned him
not to talk to anybody, especially the police without
one of them
being present.
About three weeks to a month after Brett Kebble’s death a
rusty .38 revolver was found in the garden at the Inanda home
of
Brett Kebble. It was ultimately taken to Roger Kebble’s house
from whence it was taken by the police.
According to Minaar again Brett
Kebble owned a number of cellphones. He also purchased cellphones
for Lunga Mcwana and Fikile
Mbalula, then member and President of
the ANC Youth League respectively. He mostly bought pay-as-you-go
phones and would send
Minaar to buy him airtime. He kept some of
the cellphones in his house and others in the cubbyhole of his car.
He used different
cellphones to communicate with different people.
He also utilised his fax fixed line telephone at home to
communicate with
people as a normal phone.
He concluded that according to
him Nassif and the accused were more of Stratton’s cronies
than those of Brett. He further
stated that he was not surprised by
the stories of Brett Kebble having died in an assisted suicide
because in the last month
before his death his, lifestyle and
eating habits had changed dramatically and he seemed troubled
and/or depressed.
[174] During cross-examination
Minaar conceded that many aspects in his third statement, Exhibit
“M:3” were prompted
by or he was directed thereto by the
Scorpions. These included concentration on Kebble, accused, Stratton
and Selebi; Selebi’s
visits to the Brett Kebble home; Selebi’s
meetings with Roger Kebble or vice versa; the Ramatlhodi issue; and
the trips
by private plane to name a few. He agreed that his
viva
voce
evidence-in-chief
in court went far beyond what is contained in his comprehensive third
statement. He also conceded that he did
not mention the destruction
of documents in his original statements. He however insisted that he
mentioned all these and other
things to those who were recording his
statements and the latter decided in their own judgment to exclude a
whole welter of facts
and data he gave to them. It was put to him
that the police or Scorpion investigators sanitised what he told them
to suit their
own purposes or intents and he agreed with that.
[175] When it was put to him
that contrary to his evidence-in-chief the accused never had dinner
with Brett Kebble on 22 September
2005 he insisted that he did so
with Clinton Nassif also being present at around 18h30. He agreed
that this was also omitted from
his statement even though he
mentioned it, which was also odd because it appeared therein.
[176] He was confronted with evidence of phone records already
tendered on behalf of the state by Vodacom’s forensic liaison

manager, Johanna Petronella Heynecke which indicated that Clinton
Nassif could not have been at the Kebble’s Inanda home
at the
time he mentions on 22 September 2005. He still insisted Nassif was
there in spite of this allegedly concrete evidence from
one of the
state witnesses. This reinforced the defence view that the phone
record data could not be relief on in this case.
[177] He had no answer when
confronted with the accused’s telephone records that proves
that he was not in that area from
15h15 that day. He also had no
response when it was put to him that none of all these were mentioned
in the first two statements
of three that the defence were furnished
with. He also had no answer when it was put to him that the accused
was at or around
Morningside at the times relevant to his testimony –
a place far removed or away from the Brett Kebble home. After
concrete
evidence of phone records and beacon positions from whence
calls allegedly made by the accused were bounced was placed before
him
Minaar ultimately conceded that his testimony and the contents of
his statements were mostly an echoing of what he was told to sign
for
by the investigators.
[178] On the events of 26
September 2005 this witness’s evidence that Brett Kebble
arrived from Cape Town at 13h00 he was
thoroughly discredited : He
could not dispute the fact that Brett Kebble was with the accused at
his Inanda house between 11h15
and 11h40. He professed not to have
seen Mickey Schultz and Nigel Mc Gurg in Clinton Nassif’s car
even when it was shown
that it was he who opened the gate for it or
when it was parked in front of the open garage where Brett’s
silver grey Mercedes
S600
was parked at the time he (Minaar) stood
outside the house facing this car. He also contradicted state
evidence led that John
Stratton was at Brett’s house with
Clinton Nassif and Brett on 26 September 2005 during which period
Stratton even went outside
and waived at Mickey and Mc Gurg as they
sat in Nassif’s car. He also said Nassif did not come to the
Inanda house on 27
September 2005 contrary to common cause evidence
that he did.
[179] At the end Minaar conceded
that he was urged to mislead the police investigators and he did so.
His written statement(s)
also contradicted his
viva
voce
evidence to the
effect that he saw the contents of the documents he was instructed by
Stratton to destroy by burning. He even
implicated the state
counsels in this matter as the people who drummed it into him to come
and mention the R15 million allegedly
given to Selebi and which
evidence would tend to implicate the accused. He mentioned Fikile
Mbalula of the ANC Youth League then
as well as Stratton as people
with whom Brett had some hotlines of communications. He specifically
excluded the accused on this
aspect. He also included a rider that he
was schooled by the investigators about what to come and tell this
Court concerning the
above issues.
[180] He came up with evidence that in fact Clinton Nassif used to
visit Brett Kebble’s house in the company of people like
Maro
Sabatini, Stephen Saunders, André Burger and others, and that
Nassif would usually meet with Stratton whenever he came
to the
house. He stated further that the fact that this piece of evidence
did not appear in his statements can also be ascribed
to the fact
that the police or Scorpions’ investigators deliberately
sanitised it when they wrote down the statement.
[181] During this hectic and
intense cross-examination this witness came up with one piece of
evidence that was never mentioned
by any witness : That on a certain
night during the periods relevant to the charges herein Brett Kebble
argued with his father
Roger and the two even came to blows –
that they actually fought. That their fight was so intense that
furniture, pottery,
cutlery and crockery were damaged – i.e.
broken or shattered. He could not explain why this evidence was
neither in his
written statements nor mentioned in his testimony in
chief before this Court. He said this fight took place in the
presence of
employees and stakeholders of JCI as they had had a board
meeting in the house that day.
[182] I can say here without any
fear of contradiction that the prosecution regarded Clinton Nassif as
their star witness. This
became clear from the expansiveness of
their lead on him and the length the defence went into to discredit
his evidence during
cross-examination. He spent over nine (9) days
in the witness stand. On several occasions I was occasioned to
adjourn court 30
minutes to an hour earlier upon realising that Mr
Nassif was exhausted. It is never the policy of this Court to allow
further
cross-examination of any witness when it is clear that that
witness’s concentration or alertness had been blunted by
fatigue.
[183] Nassif was also warned in terms of
section 204
of the
Criminal
Procedure Act before
he testified. His testimony was shortly the
following:
183.1 He had met the accused at
a game of golf towards the end of 2003. Thereafter he met him
regularly and their acquaintance
grew to such an extend that the
accused told him that he was working with a team that included the
then National Commissioner of
the South African Police, Jackie
Selebi, doing this and that for the Kebbles and John Stratton.
Accused took him to Cape Town
to meet John Stratton. Before they went there the accused briefed
him on what and how he should
speak and say to John Stratton to
gain his confidence as the latter was their key to the inner circle
at the Kebbles. Among
the things Nassif was to tell Stratton was
that he (Nassif) was part of Jackie Selebi’s team which
gathered intelligence
and did investigations – things the
accused knew would interest Stratton and by extension, the Kebbles.
According to Nassif the accused
later reported back to him that Stratton was happy and impressed
with him. The accused, according
to Nassif, made it clear to him
that any work that he received or did for the Kebbles and Stratton
had to go through him.
The hierarchy and structure at
the JCI Group of companies and Randgold which were owned and/or
controlled by the Kebbles were
explained to him. Although he said
he could not fully comprehend or understand it he was ostensibly in
awe of the hierarchical
structure there. He talked of Brett Kebble
as being the boss, at the top. Then there was John Stratton. Then
came the accused.
Only then, himself and the others received their
orders from him.
The hierarchical structure in
the Brett Kebbles empire was akin to that which occurs within Mafia
crime syndicates. These syndicates
are called “
families
”
i.e. Mafia family. The manner in which Nassif talked about the
structure in the Kebble family reminded me of the Corleone
Family,
which was the subject of the crime thriller by the writer Mario
Puso titled, “
The
Godfather
”. I
have no doubt that a few or many of us here saw the trilogy of
films based on this book which were shown repeatedly
on TV a few
years ago as a result of public demand. I re-visited this book
after listening to evidence herein so as to refresh
my memory on
the trickery and shenanigans practiced by the “
Cosa
Nostra
” that
is the Mafia in Sicilian
parlance
,
as demonstrated in that book.
What was happening within the
Corleone Family was not very unlike what was happening within the
empire presided over by Brett
Kebble. The evidence sketched out by
Clinton Nassif about this empire was based on skimming money from
the JCI Group of companies,
Rand Gold as well as others like
Western Areas Mines and then buying patronage with it from high
ranking police officials,
prospective directors of public
prosecutions, politicians at the highest levels and all or any
person in a position of authority
from whom a favour may be asked
or obtained.
At the head of the Corleone
Family was Vito Corleone, a Sicilian immigrant who was smuggled out
of Sicily by friends and relatives
at a tender age of about 10
(ten) to avoid being killed by a local crime kingpin of his
Corleone Village in Sicily. That crime
lord was called Don Cicci.
Cicci had already ordered the killing of Vito’s father
Antonio Andolini and his brother Paulo,
because they did not want
to bow to his rule. Vito’s death was ordered because as a
boy, he was likely to grow up and
when he was older and stronger,
he was likely to avenge the deaths of his father and brother.
He got the surname Corleone by
accident : Upon their ship docking in New York in America, all the
occupants were lined up and
checked for diseases. Vito was found
to have tuberculosis and quarantine for three (3) months was
ordered. The immigration
officer who came to register him did not
understand Italian or Sicilian. Vito did not understand or speak
English : he had
his names pinned on his jacket lapel. The officer
read the lapel which read:
“
Vito
Andolini from Corleone
”
He accidentally missed or skipped
the surname and wrote “
Vito
Corleone
”. That
is how Vito came to be known as Vito Corleone because he could not
change to his proper surname without adverse repercussions.
Fortuitously, as a result of
abuse by the authorities and blackmail and exploitation by fellow
mainland Italians who disliked
Sicilians and feared their criminal
overtness and secrecy which Sicilians practised through an oath of
silence called “
OMERTA
”,
he found himself involved in bootlegging and other criminal acts
with his peers and they ultimately formed “
a
gang
” which
evolved into a Mafia Family which they named the Corleone Family.
183.10 The Omerta is a strictly
Sicilian oath of secrecy where people intending to form a gang or a
“
family
”
come together, slashed their thumbs with a knife and then touched
each other’s bleeding thumbs as a sign of being
joined by
blood. The nett effect of the “
omerta
”
is that a Sicilian does not betray his own “
family
”.
If arrested for any crime that could betray the existence or
identifies of other “
family
”
members if he talked, he must keep quiet and keep the silence. This
action is called: “
To
stand still
”.
Anybody who “
stands
still
” will have
his own family members taken care of financially and in any manner
required until such member comes back from
prison. Such returnees
from prison are feted as kings and they acquire cult status as heros
within their communities.
183.11 At the head of the
Corleone Family was Vito Corleone who was called “
the
Don
”. He was
also affectionately known as “
The
Godfather
”. He
was what was colloquially known in mafia circles as “
Capo
duci de capi
” or
“
Capo deduci
capi
”. Alongside
the Don but not on equal status with him is what is called the
“
Consiglieri
”,
i.e. the counsellor or advisor. A consigliere must be a wise person
who is steeped in the “
omerta
”
practice and who could be trusted with the life of his Don.
183.12 Between the Don, who
dictated policy and the operatives at ground level, i.e. the ordinary
soldiers of the “
Family
”
there are three layers of command or buffers. In that way nothing
could be traced back to the Don unless the functionary
immediately
following on the Don’s position turns traitor.
183.13 Immediately under the
Consiglieri there is what is called “
Capo
regimes
” i.e.
divisional heads. It can be one or more
capo
regimes
, depending on
the size and strength or influence of the “
Family
”.
A
capo regime
controls a specific territory and enforces obedience and discipline
within that territory. He defends that territory from being

encroached on by rival Mafia families. Many a mafia or gangster wars
were sparked by this turf war.
183.14 A
capo
regime
is in charge of
soldiers who execute his and the Don’s orders. In Mafia
parlance they are called “
button
men
”. This
terms originated from the fact that once an order is issued to them
to “
push the
button
” meaning
to shoot to kill, they push the button, meaning they shoot to kill
without asking why such an order should be executed
on pain of them
being shot dead on the spot if they dilly-dallied or refused to carry
out the order.
183.15 The Don is the overall
controller of the entire territory controlled and defended by his
capo regimes
.
The preferred speciality of a specific “
Family
”
may be drugs or prostitution or labour unions or any lucrative type
of human endeavour. Once a “
Family
”
chooses a type of business, any other family encroaches onto that
business at pains of a war to the death from the incumbent
“
Family
”.
A consigliori was the
counsellor to the Don, his right hand man, his auxiliary brain. He
was also his closest companion and
his closest friend. On important
trips he would drive the Don’s car, at conferences he would
go out and get the Don’s
refreshments – coffee,
sandwiches, fresh cigars. He would be the Don’s food taster
and be expected to know everything
the Don knew or nearly
everything – all the cells of power. To quote from “
The
Godfather
” by
Mario Puso
,
2005 Edition at page 49 –
“
He
was the one man in the world who could bring the Don crashing down to
destruction. But no
consigliere
had ever betrayed a Don, not in the memory of any of the powerful
Sicilian families who had established themselves in America.
There
was no future in it. And every
consigliery
knew that if he kept the faith, he would become rich, wield power and
win respect. If misfortune came, his wife and children would
be
sheltered and cared for as if he were alive or free. If he kept the
faith.
”
In the Corleone Family Vito
Corleone was the Don, Genco Abbandando the consigliory. When he died
Tom Hagen succeeded him. The
capo
regimes
were Pete
Clemenza and Tessio. Under them were the
button men
or “
soldiers
”.
[184] From Clinton Nassif’s evidence the comparable or
analogous positions in the Kebble empire could have been the
following:
Brett Kebble – The Don or Godfather.
John Stratton –
Consiglieri.
Accused : Glen Agliotti – Capo regime.
Lower Capo regime – Nassif.
Button men – Schultz,
Nigel, Mc Gurg and Faizel “
Kappie
”
Smith; and
Soldiers – Nassif’s other security employees and whoever
would be enlisted or hired to carry out any hit or perform
any
surveillance or any other chore.
[185] The chain of command in a Mafia family was that –
The Don would privately give the
consiglieri instructions as to what should be done. There would be
no other witnesses.
In private also, the consiglieri
would issue those instructions to a
Capo
regime
, they being
also only two.
The
Capo
regime
would brief a
button man who in turn briefs other button men. At times he may
brief more than one button man.
The button man or button men
would either execute the order or instruction themselves or further
instruct soldiers under them
or hire professional executioners for
the specific chores to be carried out – be they murder,
surveillance, breaking peoples
legs or intimidating them or tapping
telephones, to name a few.
[186] The above buffer system or
hierarchy ensures that if things go wrong along the chain downwards,
the order cannot be traced
back to the Don. In most cases, one or
more of the people in the chain of command would disappear without
trace to ensure that
there are no come-backs or if any one is
suspected of being a traitor or sabotaging the process, such a person
would be killed
execution style in public as a warning to any other
would-be traitors or saboteurs within the hierarchy.
[187] Nassif further testified
that he was given a list of people that he had to check on and have
profiles done on. He was instructed
to have surveillance done on
other people – in Gauteng, Cape Town, and as far afield as
London. He also testified that on
more than one occasion he had to
oversee orders to break people’s legs or have them killed.
[188] For fifteen months he and the accused saw each other every
day. He did not put a month or year to this period for this Court
to
know if this was closer or further from the period the crimes the
acsused is standing arraigned on were committed.
[189] He further testified that during the middle of 2005 at a
meeting with Stratton and the accused, they were given names of

people that according to Stratton were really causing or becoming
problems to Brett Kebble or the Kebbles in general. They were
told
those people needed to be taken care of.
[190] To “
take
care of
” is a
Mafia
lingua franca
meaning “
kill
”
and he and the accused understood this instruction in that sense. He
and the accused agreed that they would not kill anybody
or do such a
thing. Instead they developed lies, spinning stories to appease
Stratton, making him believe that his orders were
receiving the
necessary attention when they knew that they were not doing anything
to execute them.
[191] In one meeting Stephen
Mildenhall was discussed. At that meeting according to Nassif’s
testimony in court, was himself,
the accused and Stratton. After
that Mildenhall became the subject of several other meetings as he
was about to cause some carefully
laid plans to secure a substantial
loan from a bank to abort.
[192] He testified further that one day during September 2005 the
accused phoned him and told him that he must fly to Cape Town
as
Stratton wanted to see him. As accused did not join him he flew with
Sanders to Cape Town to meet Stratton.
[193] In the kitchen at Stratton’s home the latter give him
Mildenhall’s address and pushed a little sushi knife towards

him. Thereafter he and Sanders left Stratton’s home and drove
past the address Stratton gave to him which happens to be

Mildenhall’s residence. He testified that he just wanted to
see the address although he did not intend accepting the job
of
killing Mildenhall. He and Sanders then drove back to Johannesburg.
[194] In Johannesburg he met with the accused and told him that he
(Nassif) was not interested in the job of killing Mildenhall.
He
stated that after he and the accused had discussed this assignment
they decided they did not want to get involved in it at
all.
[195] After some time accused
called him to a meeting with Stratton and the latter asked them if
Mildenhall could not at least
this time around be taken out of action
for three to six months so as to make sure he did not jeopardise
Brett Kebble’s carefully
arranged loan which was about to be
approved but around which Mildenhall was busy snooping and could
cause to be aborted or refused.
[196] He promised to look into
it. He then contacted Schultz and asked him if he could not execute
this latest instruction. Schultz
promised to look into it. After a
while he (Schultz) came back to him and told him that the job could
be done. He notified the
accused about this and both of them went to
inform Stratton. They told Stratton that the price would be R1 000
000,00 and Stratton
agreed. They (accused and Nassif) knew that the
cost of executing that job in Cape Town where Mildenhall resided
would be far less
than R1 million. They intended pocketing the
difference. He told Stratton that they needed upfront money to give
to the “
button
men
” and
Stratton arranged through the accused that they get R200 000,00.
[197] According to Nassif, the
accused is the one who handed him the R200 000,00 which he in turn
handed to Schultz who organised
the trip to Cape Town to put
Mildenhall out of circulation for the period required.
[198] When I asked him how the
R200 000,00 was made up he stated that he did not remember if he
initially had a cheque which he
cashed or whether he received the
amount in cash.
[199] Schultz enlisted the
services of Nigel and Kappie. The latter organised some Cape Town
thugs through a relative of his.
The three hit the road to Cape Town
in an X5 BMW which a client had left at their scrap yard for some
repairs. Along the way they
were involved in an accident and the X5
could not proceed with the trip. He (Nassif) went to Colesberg in the
Cape Province where
they were stranded and hired them another car.
Schultz returned with him to Johannesburg for a while but drove back
to Cape Town
again to join his mates.
[200] It was part of their operational ethics that none of them used
his official cellphone. They were also not using flights
or buses in
the travels when on a job – all for the reason that they should
not be traced in their movements.
[201] In Cape Town they staked a wrong vehicle, thinking it was
Mildenhall’s. The reason was that Stratton had given them
a
wrong address and the car they followed from the wrong address fitted
Mildenhall’s car. Schultz phoned him (Nassif) and
he contacted
Stratton who gave them the correct address.
[202] After a day or two Schultz
gave him Mildenhall’s driver’s licence as proof that they
did the job they were hired
to do. He gave the driver’s
licence to Strattorn. That same day he met the accused who told him
“
these boys were
very happy
”
meaning Brett Kebble and Stratton.
[203] In relation to the Kebble
murder he testified that he attended a meeting with accused and
Stratton when the latter asked
him whether he could procure a pill
that could induce a heart attack without it being detected in a
post
mortem
or autopsy. He
promised to look for it. In between the accused started pestering him
about whether he had not yet procured the
pill as Stratton was
nagging him over it. He was not told who was to use that pill. He
could not find it until Mildenhall was
shot.
[204] He then thereafter
attended a meeting at Brett’s house in Illovo where Stratton
and accused were in attendance. He
was then told that the sought
pill was for Brett to commit suicide with by putting it un-noticed in
the drink or food of the pilot
flying the aeroplane he would be in.
When the pill knocks out the pilot, giving him a massive heart attack
then plane would crash
and both would die. He was surprised and
shocked by this revelation. Later Stratton told Brett that this
witness was failing to
obtain the heart attack-inducing pill. Brett
then personally pleaded with him to try harder to find that pill as
he was at the
end of his tether with all the trouble brewing at JCI
and that if he does not find that pill to end his life, his fear was
that
he would end up in a mental institution and at worst, in prison
from those troubles.
[205] During this discussion, so testified Nassif, accused did not
say anything or react in any way. According to him (Nassif)
he and
the accused could not believe what they were hearing, viz, that Brett
indeed wanted to end his own life. He said further
that from the
accused’s reaction to these discussions he formed or gained an
impression that the accused was hearing this
story of the pill for
the first time.
[206] On leaving that meeting he
set up an appointment with Brett’s father, Roger Kebble. At
the resultant meeting with
Roger he told him about his son’s
plans of wanting to die. According to him, Roger freaked out, mouthed
expletives and told
him that what he had just told him fitted Brett’s
character because since his youth, whenever he encountered a mental
block
or serious problems he would contemplate suicide. The
following day he was summoned to Brett’s house where he found
Brett,
Stratton and the accused. Brett Kebble berated him for
telling his father about his plans. When he had satisfied himself he
(Brett)
suggested to him that he should get somebody to do a
hijacking on him or anything along those lines. He personally
thought Brett
had lost his mind! Subsequent to this encounter Brett
confronted him about the tablet again at a meeting where he, Kebble,
accused,
Stratton and one Johann were. When he said, no, Brett and
Stratton concentrated on the issue of a faked hijacking to kill him.

He promised to think about it. When he met with the accused alone
later they discussed this request. They both agreed that they
should
pretend as if it was never mentioned to them, maybe it would blow
away. However, the accused subsequently put pressure
on him to do
something as he was getting a lot of pressure from Stratton.
[207] As the accused socialised with Stratton and Brett and he did
not, he assumed the accused was part of the plotting and planning

over this assisted suicide thing.
[208] He told Schultz about the
request and the latter considered Brett to be mad to think along
those lines. On another later
occasion he met Brett and Stratton and
they brain-stormed on various methods of executing the plan to have
Brett killed. The accused
was also present. He then went back to
Schultz and told him that if he (Schultz) was not ready or prepared
to assist Brett with
his death, then the accused would be asked to do
so. That was when Schultz agreed to kill Brett. At a further meeting
with Brett,
accused and Stratton a plan was agreed upon that Schultz
would follow Brett along a pre-agreed road and then shoot him. He
told
Schultz about this. Then he (Nassif) and accused went back to
Brett to relay to him how he would meet his death and it was further

agreed that he would be shot dead on 22 September 2005. He and the
accused put the price of the hit at R1 million to R2 million.
Between
him and the accused they agreed that the shooting should not go on
until the money had been paid.
[209] The night of 22 September 2005 he realised that he had not
told Schultz that the shooting should not go on that night. He
asked
his wife to phone Schultz and tell him the meeting was off, meaning,
no shooting that night.
[210] During the night he
received a phone call from an incensed Nigel Mc Gurg who was upset to
realise that the accused knew of
their plans. He assured him that
accused was “
cool
”.
When Nigel was still not satisfied he told him they would discuss the
matter in the morning.
[210] The following morning at CNSG he told Nigel that the accused
was a vital cog in the scheme of things as he controlled the

finances. Nigel was still not happy : he told him to tell accused
never to phone him again, as he (Nigel) and his allies in the

soldier’s ranks did not want to have anything to do with the
accused.
[211] He had another meeting
with Kebble, Stratton and the accused at Kebble’s home and this
time the former sounded very
desperate. He even said the hit had to
be done on him and if payment was the issue, Stratton would look
after the executioners
including Nassif. That was when he and the
accused took a conscious decision to help him even if it would be for
free because they
realised that the possibility loomed large that
they may not be paid once he is dead. They scheduled the hit with
Schultz for 26
September 2005.
[212] The last meeting between Brett, accused and him (Nassif) was
then scheduled for the day of the hit, i.e. 26 September 2005.
[213] At around 19h30 to 20h00 on this date he received a call from
the accused asking him where the boys were because Brett did
not meet
them as agreed. He said accused told him Brett was going beserk.
[214] He telephoned the accused and told him that he would
investigate and talk to him in the morning.
[215] The next morning Schultz
reported to him that their car overheated the previous night and they
had to abort the mission.
Accused told him how Brett had psyched
himself for the death. He (accused) suggested he (Nassif) go see
Brett at his home the following
day. He did so and explained to him
the problems his men encountered. He had gone to this house with
Schultz but the latter had
remained in the car : He and Kebble prayed
together and he assured Brett that he would be shot that night, i.e.
27 September 2005.
Brett even went outside and waved at Schultz.
[216] That night he slept early.
At about 21h01 he received a call on his wife’s cellphone
notifying him that Brett had
been shot. He obtained the address of
the murder or shooting, collected Sanders and drove to the scene.
Accused arrived there
20 minutes after him.
[217] He did not receive any payment for this job and Schultz, Mc
Gurg and Smith were breathing down and around his neck demanding

their money. He told them accused was going to arrange the payments.
Knowing that they would confront the accused about their
money he
asked accused to lie to them and pretend that indeed he was waiting
for the money to pay them. He however feared that
the three could
hurt the accused if he did not give them their money. He himself did
not fear anything from them because he knew
how to handle them. He
thus started paying them in drips and drabs from his own resources.
The last payment he effected after
receiving a bond payout of R750
000,00.
[218] About Alexis Dimitri Christopher he said he last saw him four
years ago as at the date he testified.
[219] About 20 days after the
accused was arrested in connection with this case he asked Alexis
Christopher to contact accused’s
ex-wife as he wanted to talk
to her. He was to advise her to go visit the accused in the cells and
urge him to cut a deal with
the Scorpions. When Christopher called
the accused’s ex-wife Viviene, he just told her to meet him
(Christopher).
[220] When Viviene arrived he
moved with her from near his restaurant which is on the ground floor
of the complex to just around
the corner on the same level but in the
parking lot. He says he told Viviene about the accused cutting a
deal with the Scorpions.
She promised to relay the message.
[221] He himself was then
arrested for fraud. He had lifted his accident damaged Mercedes Benz
with a forklift and damaged it
beyond repair by dropping it down. He
asked his attorney, Tamo Vink to try bail him out by negotiating
something with the authorities.
[222] The first statement in
connection with our present case he deposed to after his arrest for
the fraud case as set out above.
He deposed to the 204 statement
after being advised by his attorney Tamo Vink to do so. Tamo Vink
drafted the statement. He was
working with Adv Barry Roux. The
second statement was drafted by Andrew Leask and Gerrie Nel and he
swore to it while with Vink
and Barry Roux. In all he had deposed to
five (5) statements.
[223] His relationship with the accused ended when the latter was
arrested.
[224] He sent out an emotional apology from the witness stand to the
Kebble Family and Mildenhall.
[225] In the Mildenhall shooting he agreed to pay Schultz, Mc Gurg
and Smith R500 000,00. He and the accused would then share
the
balance, taking R250 000,00 each.
[22
6] He
never discussed payments for the Brett Kebble killing with the
accused. Apart from receiving R200 000,00 from the accused
for the
shooting of Mildenhall he never received any other money from him.
What he did was ask accused to help retrieve the Brett
Kebble payment
from Stratton.
[22
7] He
denied ever asking the accused he phone Mc Gurg on 22 September 2005.
[228] If
Nassif was not cross-examined there would have been evidence which
implicated the accused at least with the conspiracy
charges herein.
However, he was cross-examined at length and he progressively
rendered his evidence-in-chief valueless through
the answers he gave.
[229] I do not
intend summarising the full extent of the issues raised during the
cross-examination of Mr Nassif. I will only refer
to some of the
issues elicited thereby.
[230] Progressively
throughout his cross-examination Nassif retracted most of the
evidence he tendered in chief, even on non-contentious
issues for
example:-
[231] He at
first denied sharing attorney Tamo Vink with Sanders but when it was
pointed out to him in the record, he grudgingly
acknowledged it. He
professed having made only two statements to the police, the first
one being the
section 204
statement deposed to on 8 November 2006.
When shown another stated dated 10 November 2005 he then admitted
making several other
statements.
[232
] His
statement dated 10 November 2005 was identical to that of Sanders,
font, setting, dates, commissioner of oaths, and other
aspects and
all.
[233
] In
his earlier statement he was categoric that the meeting with Stratton
in Cape Town together with Sanders was demanded and arranged
by
Stratton himself. In court he says he was told by the accused that
Stratton wanted them in Cape Town and he took Sanders along
only
because the accused was not available for accompany him. That is the
meeting where a sushi knife was mentioned.
[234] In his
section 204
statement he did not implicate accused of all with the
Mildenhall incident but in his evidence in court he does so.
[235] He told
court that after leaving Stratton’s home he threw the sushi
knife out through the window. Sanders said they
left it in the hired
car.
[236] In court
he testified that he himself received a list of people he so killed.
Under cross-examination he denied it until
the tape was played back
to him. On hearing that he lied he said his earlier denial was a
mistake on his part.
[237] Immediately
thereafter he once more denied putting such a document together or
handling it and contended that his testimony
to that effect was a
mistake.
[238] In chief
he denied ever booking into a hotel the day he and Sanders went to
see Stratton but his statement clearly mentioned
this.
[239] In his
statement he was categoric that Stratton alone was the one who put
pressure on him to do the job on Mildenhall but
in his oral evidence
he sought to include the accused as the person who also did so.
[240] He
testified in court that the accused gave him the R200 000,00 that
Schultz and company took with them to Cape Town for the
Mildenhall
hit. However when reminded that according to Schultz his (Nassif’s)
employee received a cheque from him (Nassif)
which he cashed at a
bank and handed the cash to him (Schultz), he conceded that that was
the case.
[241] He did
not recall under cross-examination telling Schultz, Mc Gurg and
Kappie Smith not to take their cellphones to Cape Town
during
cross-examination forgetting that he testified that he did so and it
was standard operational requirement during any of
their nefarious
operations. He answered by saying that he might have possibly
reminded them to do so.
[242] During
cross-examination he contradicted his oral evidence that the accused
did not take part in the set up and the negotiations
over the money’s
to be paid in respect of the Mildenhall job. He had to retract when
this was pointed out to him and even
shown where in his statement he
admitted this.
[243] Initially
his version was that Stratton gave him the names of people to be
dealt with or eliminated. In his March 2010 statement
he said
accused gave him those names. Under fire from the cross-examination
he stated that his statement was wrong in this regard
and that the
accused never gave him any list of names.
[244] Under
cross-examination he conceded that he never conspired with the
accused to plan the murder of Dr Bristow, Nortier or
Mark
Wellesley-Wood. In respect of Mildenhall Nassif stated that accused
never participated in the shooting of Mildenhall. He
said he was
just present when Stratton gave him (Nassif) instructions to arrange
it.
[245
] He
contradicted himself materially on how much he paid Schultz for the
Mildenhall shooting.
[246
] He
confirmed that the accused never received or shared in any of the
various payments for the shootings mentioned in this case,
in so
doing contradicting his version that accused was at least to receive
R250 000,00 for the Mildenhall shooting.
[247] From the
totality of his testimony it was clear that Nassif assumed that the
accused should have had knowledge of all the
planning and
organisation of the various operations because he was close to Brett
Kebble and Stratton. He could not explain the
basis of his
assumption.
[248] Clinton
Nassif’s evidence-in-chief in court differed from the statement
he made in terms of
section 204
which in turn differed from the
supplementary affidavit he made on 30 March 2010. He did not
hesitate to contradict himself on
an issue he had just admitted.
Whenever he was caught out, which was almost 75-80% of the entire
cross-examination period he would
say “
I
have no comme
nt”.
[249] He
conceded that the chief investigator who took down his last
statement(s) is the one who asked him to testify on specific
dates
which he had not spontaneously spoken about. He conceded that other
witnesses’ statement’s contents were put
to him and when
he confirmed them the investigator wrote down. As such, his
testimony was not an independent recollection of what
he personally
knew had happened or said.
[250] It was
his evidence that he was on call to Stratton and Brett Kebble 24
hours a day, not mentioning the accused hereon.
As his testimony
progressed he wanted the court to accept that the accused should be
interposed into this relationship without
providing any foundation
for this.
[251] His
evidence in relation to when and how or who contacted him
telephonically was proven through cross-examination to be untrue.

For example, he mentioned in court that he received a call that Brett
had been shot at 21h01 whereas phone records pointed to
him receiving
a first call on that night of 27 September 2005 at 23h01 – two
hours later. This mistake was coincidentally
made by Sanders in his
statement that I earlier stated was identical in form to that of
Nassif. An inference, as suggested to
him by the cross examiner,
that he had first read Sander’s statement may be difficult to
exclude that he had indeed done
so. His responses hereon were
inconclusive, to say the least.
[252] Try as
he did, Nassif ultimately conceded that when Brett Kebble’s
shooting plans were finalised accused was not there.
[253] Nassif
obviously tried everything in the book to avoid testifying in this
trial. There is evidence that just before this
trial commenced, he
instructed his attorney to approach the accused’s attorney with
a request that the latter advise his
client to negotiate a
section
105A
plea and sentence agreement with the prosecutors. We know again
that before that, at Dimitri Christopher’s shopping complex,
he
tried to convince the accused’s ex-wife to go and persuade the
accused as much. It also emerged that his attorney even
flew to
Australia to ask John Stratton to negotiate the same
section 105A
plea and sentence agreement. When all these were put to him in
cross-examination he professed not to know anything about them
at
first but had to concede to their truthfulness when questioning
intensified.
[254] All the
other 12 witnesses who testified against the accused or for the State
in this matter did not implicate accused in
any wrongdoing or connect
him with any of the charges. Even the actual shooters or
executioners of instructions to shoot any of
the victims in this
matter expressly stated that the accused never conspired with any of
them to shoot the complainants in count
1, that the accused never
participated in the shooting of Mildenhall, he never conspired to
kill Brett Kebble with anybody in as
far as they knew and he was not
present when they shot him.
[255]
The
allegations of conspiracy and the furtherance of a common purpose in
the indictment cannot be sustained when the totality of
the evidence
is considered
vis-à-vis
the accused.
255.1
The
prosecution’s heads of argument were not very helpful to this
Court. They had no references to parts of the evidence
led and the
defence was able to point out that most of the assertions attributed
to various witnesses in the heads were in fact
incorrect.
255.2
The
one witness who could have connected the accused to the charges in
the indictment herein is Clinton Nassif. Unfortunately,
when the
totality of his evidence is taken into consideration, he failed
dismally to acquit himself of that task.
255.3
I
can only speculate on what the situation would have been had the
accused been charged together with John Stratton. The latter
is, on
the evidence herein, a common denominator in everything that happened
during all the situations covered by the charges herein.
I dare say
that it would have been an uphill battle for the accused to convince
the court to grant him a discharge at this stage
if Stratton was his
co-accused. Why accused was not prosecuted simultaneously with
Stratton may be one of the biggest injustices
that may have come out
of this case. However, the State is
dominis
litis
and has absolute discretion to decide who to charge and/or with whom.
[25
6] What
now is the legal framework underpinning this application.
Section
174
of the
Criminal Procedure Act read
as follows:
“
174. Accused
may be discharged at the close of case for prosecution.
If at the
close of the case for the prosecution at any trial, the court is of
the opinion that there is no evidence that the accused
committed the
offence referred to in the charge or any offence of which he may be
convicted on the charge, it may
return
a verdict or not guilty
.”
[25
7] The
words “
no
evidence
”
in the section have been interpreted to mean no evidence upon which a
reasonable man (court) acting carefully may convict.
S
v Khanyapa
1979 (1) SA 824
(A) at 838.
S
v Mpetha
1983 (4) SA 262
(C) at 263H.
S
v Swartz and Another
2001 (1) SACR 334
(W).
Where an accused is charged with multiple charges the court may
discharge him on one or more of those charges if there is no evidence

on them.
S
v Manekwane
1996 (2) SACR 264
(O).
However, where
more than one accused are charged with the same offence the court may
refuse to discharge one of them if it is in
the interest
s
of justice not to do so.
[258] Where
the only evidentiary material on record at the end of the state case
is an informal admission made by the accused while
pleading not
guilty, such does not amount to evidence and the court may,
mero
motu
discharge the accused.
S
v Mashele
1990 (1) SACR 678
(T).
[259] The
above does not apply to our present case because the accused herein
has not made any admissions during the plea stage
which may or could
have materially impacted on culpability.
[260] In
arriving at a decision whether an accused person could or may be
discharged at the close of the state case it is at present
an
accepted fact that the credibility of the state witnesses should be
taken into account at this stage.
See
:
S
v Nandha Gopal Naidoo
1966 (1) PhH 104 (W).
S
v Bouwer
1964
(3) SA 800
(O).
S
v Mpetha and Others
1983 (4) SA 262
(C) at 265D-G.
[261]
However
in
S
v Mpetha (supra
)
Williamson J held among others that credibility would play only a
very limited role and the evidence ignored only if it was of
such a
poor quality that no reasonable person could possibly accept it.
[262
] This
latter stand corrected earlier practice where the courts were of the
view that credibility was not a matter that a judge
should consider
when considering a discharge as this was a matter to be considered at
the appropriate time, i.e. at the end of
the trial after the State
and defence cases are closed.
See
:
R
v Dladla & Others (2)
1961 (3) SA 921
(D).
S v
National Board of Executors Ltd & Others
1971 (3) SA 817
(D) at 819.
[263
] Even
in the pre-constitutional era, presumption of innocence, the right to
silence and the right against self-incrimination were
recognised.
But still there would be conflicting decisions in this regard.
[264
] In
S
v Kritzinger
1952
(2) SA 401
(W) the court held among other that the guiding word in
section 174
was “
may
”
not “
must
”.
It further enforced the view propounded in the
Dlada
and
National
Board of Executors
cases by insisting that even if the evidence at the end of the state
case is not such that a reasonable person might convict thereon,
the
court is still entirely justified to refuse to discharge the accused
if it is of the view that there is a possibility that
the case for
the State may be strengthened by the evidence brought forth in the
course of the defences case.
[265
] The
view in
R
v Kritzinger (supra)
was advanced further in
S
v Shuping
1983 (2) SA 119
(B) wherein the following words of Hiemstra CJ at
121A illustrates the point:
“
At
the close of the state case, when discharge is considered, the first
question is: (i) is there evidence on which a reasonable
man might
convict; if not, (ii) is there a reasonable possibility that the
defence evidence might supplement the state’s
case? If the
answer to either question is yes, there should be no discharge and
the accused should be placed on his defence
.”
[266
] As
already stated the post constitutional era has changed all these.
Even before this era the courts still recognised the constitutional

rights of the accused person as I alluded to above. For e.g. in
S
v Mall
1952 (2) SA 401
(W) it was held among others that it is wrong to
place the accused on his defence in such circumstances and expose him
or her to
the risk of incrimination by a co-accused or by his own
admissions.
[267
] In
S
v Lubaxa
2001 (4) SA 1251
(SCA) the Supreme Court of Appeal held that where
there is a single accused and there is, at the close of the State’s
case,
no possibility of a conviction unless the accused testifies in
a self-incriminatory manner, the failure to discharge (if need be,
mero
motu
by the court) is a breach of the constitutional guarantee of fairness
which will usually lead to the setting aside of the conviction
(if it
eventually ensued), which would have been based solely on the
self-incriminatory evidence.
[268
] The
same verdict and reasoning as in
S
v Lubaxa (supra)
was arrived at in
S
v Zuma
2006 (2) SACR 191
(W) even though it was in respect of a differed
aspect.
[269
] It
is commonly agreed that as at present or always,
section 174
serves a
valuable purpose and is also constitutionally acceptable as the
Criminal Procedure Act’s
main purpose among others is to strive
for or achieve orderly and fair criminal justice.
[270] As aptly
set out in Hiemstra’s
Criminal
Procedure
(Albert Kruger) Lexis Nexis, 2008 at 22-76:
“
Section
174
creates an exception to the normal trial procedure, primarily to
relieve the trial court of the burden of persisting machine like
with
a futile trial when it is clear that there cannot be a conviction.
The underlying purpose is to save time and effort, not
to complicate
the court’s task. The working of the Section is simple and its
meaning unambiguous. The court is given the
power to render there
and then, at the closure of the case for the prosecution, a judgment
of not guilty. There is however a jurisdictional
prerequisite to be
satisfied before the power arises in this manner: the court must be
of the view that there is no evidence upon
which a conviction can be
based. Therefore, two related but distinguishable decisions have to
be made: is there a lack of evidence,
and, if so, should discharge be
granted? The former entails mainly a clinical assessment of the
evidential value of the evidence;
the latter requires sound judgement
in the light of all the circumstances of the particular case.
”
[271
] In
terms of
section 174
there is no obligation to discharge but a
competence to do so. The court is called upon to act judicially with
sound judgment
in the interest of justice. It may sometimes be
unwise for me as judge in this case, to place too much stress or
emphasis on
what Judge A had occasion to say in case A about the
factors and/or measures which had to enjoy priority in that case.
The facts
and circumstances of each case dictate what route to follow
and the judge is led to the end result therein by those circumstances

and evidence as coloured and/or informed by recognised rules, laws
and procedures.
[272] In
S
v Lavhengwa
1996 (2) SACR 453
(W) the view was expressed that the processes
under
section 174
translate into a statutorily granted capacity to
depart discretionally, in certain specific and limited circumstances,
from the
usual course; to cut off the tail of a superfluous process.
Such a capacity does not detract from either the right to silence
or
the protection against self-incrimination. If an acquittal flows at
the end of the state case the opportunity or need to present
evidence
by the defence falls away. If discharge is refused, the accused
still has the choice whether to testify or not. There
is no
obligation on him to testify. Once this Court rules that there is no
prima
facie
case
against the accused, there also cannot be any negative consequences
as a result of the accused’s silence in this context.
See
also:
S
v Chogagudza
1996 (3) BCLR 429
(25).
[2
73] I
agree with the view that it is an exercise in futility to lay down
rigid rules in advance for an infinite variety of factual
situations
which may or may not arise. It is thus, in my view, also unwise to
attempt to banish issues of credibility in the assessment
of issues
in terms of
section 174
or the confine judicial discretion to “
musts
”
or “
must
nots
”.
[274
] Nassif
was proven to be an untruthful witness who changed versions without
bathing an eyelid. Whenever an inconsistency in his
evidence was
pointed out, he would concede to it and profess a mistake or say he
has no comment.
[275] It is my
considered view that Nassif’s evidence is of such a poor
quality that it cannot be safely relied upon.
[276] It is
clear from the evidence led that the DSO wanted the accused so badly
that it did not matter how evidence is procured
to prosecute him as
long as he is brought before court.
[277
] It
is common cause that an accused person may only be charged with an
offence on the basis of a witness’s statement only
if that
statement at the time discloses an offence against him.
[278
] In
this case, the
section 204
statement deposed by Clinton Nassif does
not implicate the accused with the offences he was charged with even
originally. Why
he was arrested and charged at that time is not
clear to this Court.
[279
] It
is so that Nassif’s supplementary statement does mention
impropriety and/or complicity by the accused in some wrongdoing.
The
question to be asked is when did Nassif realise that the accused
acted as he tried to depict in that statement of 30 March
2010? In
any event Nassif was so thoroughly discredited during
cross-examination that at the end of the day there is no credible

evidence left on record upon which a court, acting carefully, may
convict the accused.
[280] As
stated hereinbefore, it was held in
S
v Lubaxa (supra)
that if there is no possibility of a conviction other than if the
accused enters the witness box and incriminate himself, a failure
to
discharge an accused in those circumstances would be a breach of
rights guaranteed in the Constitution. To re-interact the
word of
Nugent J:
“
The
right to be discharged at that state of the trial does not
necessarily arise, in my view, from considerations relating to the

burden of proof (or is concomitant the presumption of innocence), or
the right to silence or the right not to testify, but arguably
from a
consideration that is of more general application. Clearly a person
ought not to be prosecuted in the absence of a minimum
of evidence
upon which he might be convicted, merely in the expectation that at
some stage he might incriminate himself. That
is recognised by the
common law principle that there should be
reasonable
and probable
cause to believe that the accused is guilty of an offence before a
prosecution is initiated (Beckenstrater v Rottcher & Theunissen
1955 (1) SA 129
(A) at 135e), and the constitutional protection
afforded to dignity and personal freedom (sect. 10 and s. 12) seems
to enforce
it. It ought to follow that if a prosecution is not to be
commenced without the minimum of evidence, so too should it cease
when
the evidence finally falls below that threshold. That will
pre-eminently be so where the prosecution has exhausted the evidence

and a conviction is no longer possible except by self-incrimination.
A fair trial, in my view, would at that stage be stopped,
for it
threatens thereafter to infringe other constitutional rights
protected by s. 10 and s. 12.
”
[2
81] Claassen
J put it as follows in
S
v Mathebula & Another
1997 (1) SACR 10
(WLD) at 35e:
“
In
short, exercising a discretion in favour of the State under the
circumstances of this case in terms of Section 174 would, in
my view,
deny the accused his right to a fair trial. To my mind, the sprit,
purport and object of Chap 3 of the Constitution can
lead to no other
conclusion but that the concept of a fair trial in these
circumstances means that one can justly and fairly say
to the state:
‘
You
had your chance to prove the accused’s guilt. You failed to
prove a prima facie case against the accused. You cannot
now seek
the accused’s
…
assistance, to do what you could not do
’.
”
[282
] In
S
v Ndlangamandla & Another
1999 (1) SACR 391
(W), Willis J held as follows at 393G-I:
”
It
seems to me that the provisions of s. 35(3)(h) of our Constitution
with regard to the presumption of innocence, the right to
silence and
the right not to testify, have at least three practical consequences
impacting upon
s. 174
of the
Criminal Procedure Act:
1. The
court has a duty mero motu to raise the issue of the
possibility of a discharge at the close of the case for the
prosecution where
it appears to the court that there may be no
evidence that the accused committed the offence.
2. Credibility,
where it is of such poor quality that no reasonable person could
possibly accept it, should be taken into account
at this stage.
3. The
second leg of the test in S v Shuping (supra) should not apply.
”
[283
] Khumalo
J was of the same view in
S
v Motlhabane & Others
1995 (2) SACR 528B
when he said the following:
“
Taking
all that has been said above into account I come to the conclusion
that the interests of justice would be best served by
allowing the
application under
Section 174
of Act 51 of 1977. This is a serious
matter but we must understand that courts decide cases on evidence
and if at the end of the
State’s case the evidence is not
sufficient, then the accused is entitled to be discharged.
”
[28
4] In
the circumstances of this case, I am left with very little room to
move. I am bound by the evidence that has been led herein.
My
findings are informed by the circumstances of and evidence led in
this case. At the end of the case for the prosecution, the
only
witness who was expected by the prosecution to implicate the accused
with the charges set out in the indictment herein, i.e.
Nassif, had
dismally failed to do so after his evidence was cancelled or negated
during cross-examination, I may be bound to let
the accused go. Even
under the common law prior, to 27
April
1994, it was accepted practice and principle that in circumstances
where the State proves no evidence against the accused,
the court
should
mero
motu
,
without waiting for the accused to make an application for it,
discharge him in terms of section 174.
[285] The
startling similarities of the statements of Sanders, Nassif and
others as well as the attribution of certain phrases to
wrong people
as well as the utilization of incorrect dates, and times, indicates
that there could have been collusion between them
in the compilation
of those statements. This impacts negatively on their credibility as
witnesses and on the fairness of this
trial.
[286] The
timing of the supplementary affidavit by Nassif and its contents
which belatedly tend to implicate the accused herein
point to a
predetermined or premeditated course of action to implicate this
accused in the crimes set out in the indictment. I
cannot see any
reason why, if the contents of this affidavit were true, they would
not have been part of the section 204 statement
that Nassif deposed
to on 8 November 2006 or the statement he made on 10 November 2005.
They sound to me to be recent fabrications
and the defence’s
charge that they were specially invited or put to Nassif by the
investigators or the prosecutors at the
time for him only to glorify
same with his signature may have a ring of some truth to it.
[287] Any
attempt to manipulate the evidence of a state witness so as to ensure
that he/she testifies in court about matters that
are not covered by
his/her statement or of which he has no independent knowledge, more
so, where the statement is in terms of
section 204
of the
Criminal
Procedure Act is
irregular and may be unconstitutional and render the
trial unfair.
[288] The
defence caused statements made by the
section 204
witnesses as well
as statements by other key witnesses to be handed in at this trial in
order to illustrate that they testified
about aspects that had not
been covered in their
section 204
statements. This tends, in my
view, to show up some semblance of interference with those witnesses
before they testified under
oath in this Court. It points at or to
irregular action on the part of either the investigations or
prosecuting team(s) to cajole
witnesses into implicating this accused
even where such witnesses did not spontaneously implicate him.
[289] In
S
v Rozani; Rozani v Director of Public Prosecutions, Wester Cape &
Others
2009 (1) SACR 540
(C), Thring J was dealing with a case where, during
a plea of guilty on a charge of rape, the prosecutor deliberately
withheld
the contents of a J88 Medical Report in respect of what the
doctor saw on the complainant when the latter was examined. This the

prosecutor did in order that the magistrate should not ask questions
from the accused, answers to which might have prompted the
court to
change the plea of guilty to that of not guilty as the contents
thereof were not consistent with those of a person raped.
In
castigating this behaviour the learned judge said the following among
others at 550D:
“
The
fact that, to the knowledge of the prosecutor, the defence attorney
was also aware of the content of the J.88 Form greatly mitigates
the
reprehensibility of the Prosecutor’s silence, but it does not,
in my judgment, excuse it. In contrast to the position
in some
countries, in South Africa it has never been a matter of the
Prosecution being expected to win at all costs against the
defence …
But it is inappropriate and in bad taste to speak of a criminal
trial being
won
or
lost
by the prosecution. Such an attitude on the part of the prosecutor
is unhealthy and dangerous. The state either secures a conviction
or
it does not do so. It is the overriding duty of the prosecuting
authority not to win convictions, but to see to it that justice
is
done. This may of course include the acquittal of accused persons
whose guilt cannot be proved beyond reasonable doubt. A
prosecutor
is expected at all times to act in a manner which is responsible and
fair to the accused and to be candid and open with
the court. Hence
it is said that it is the duty of a prosecutor to place all the
material before the court which is at his disposal,
provided that it
is relevant and admissible …
”
[2
90] Even
though we are not dealing with proof beyond a reasonable doubt at
this stage, the above quotation is still apt and applicable
to this
case. It was mostly the defence that brought up statements of
witnesses that the prosecution did not bring up. Other
statements
like that of Mr Stemmet were never brought up or officially handed to
the defence despite the latter proving that they
were relevant to
this case. I have noted Adv Dakana’s assertion that they
themselves as the prosecution were not aware of
Stemmet’s
statement. That, in my view, cannot be a good excuse. Other
statements were belatedly handed over to the defence
during this
trial. Why this one was not handed over or its maker not called is
unknown to me and I do not want to speculate thereon.
[291] To sum
up, the prosecution also submitted that the accused was shown in
evidence to have directly contributed to the shooting
of Mildenhall
and Brett Kebble. It is my considered view that this submission
could only have been tenable if the witness Nassif’s

evidence-in-chief stood uncontradicted by cross-examination. The
State also submitted that the accused promised to arrange for
the
payment of the killers. This submission in fact contradicts Nassif’s
evidence that it is he who came up with this ruse
of saying the
accused would arrange payments purely to appease Schultz, Mc Gurg and
Smith and to protect him (accused) from possible
harm from his
“
soldier
s”
or as said in mafia parlance, “
button
men
”.
I
NDEMNITY
[293
] I
have indicated at the very beginning of this judgment that it may be
necessary that I look at the testimonies of Nassif, Schultz,
Mc Gurg
and Smith with a view to determining whether any of them qualifies to
be indemnified from prosecution in respect of any
offence related to
what he was called upon to testify on.
[294
] It
is so that the prosecution did not attempt to discredit any of the
witnesses it called or draw my attention to the fact that
any of them
was deviating from his statement. That fact does not preclude me
from deciding whether to grant or refuse immunity
from prosecution to
any of the witnesses. In fact, I am obliged to do so.
[295
] During
the closing arguments counsel for the defence made known his views as
to who should be granted immunity and who not, even
though it was not
in many words.
Michael Schultz
He was
forthright in his testimony about what he actually did. He received
his instruction from Nassif exclusively and he d
isseminated
those to his fellow travellers-in-crime. My considered view is that
he testified truthfully about all the unfortunate
and blood curdling
acts that he committed. If he was not warned in terms of
section
204
, his conviction for all the crimes in the indictment hereon would
have been a formality.
I am satisfied
that Schultz testified in a manner that satisfied the requirements of
section 204
of the
Criminal Procedure Act.
He
is thus granted indemnity or immunity from prosecutions in respect
of the crimes he testified about and which were set out in the

indictment.
295.2
Faizel
“
Kappie
”
Smith
He also testified in a flowing and convincing manner indicative of a
person who was there when the crimes were committed. My view
of him
is that he was also honest and truthful about his part in these
dastardly deeds. He is also granted immunity or indemnity.
295.3
Nigel
Mc Gurg
He was a
difficult witness who displayed an above average degree of hate for
the accused. I could see his face darken with scorn
or hate or rage
at the mention of the accused’s names. He contradicted himself
during cross-examination and after careful
assessment I have come to
the conclusion that those contradictions were not
per
se
so
as a result of being untruthful. He was so blinded by his hatred of
the accused that whenever his name was mentioned he would
puff up and
start retorting things that contradicted what he said before. I am
satisfied what he knew no more than what he was
to do with Schultz
and Kappie. That regardless, he also corroborated his partners in
crime about what they all did. Whether one
likes it or not, he also
qualifies for indemnity. He is thus also granted immunity or
indemnity.
295.4
Clinton Nassif
As set out in
this judgment Nass
if
was evasive, slippery and unconvincing about what he wanted to tell
to this Court about what was actually planned and by who.
I
distinctly formed an impression that he was not telling this Court
all the truth. He contradicted himself and also contradicted
his bed
fellows. I am not satisfied that Nassif qualified for indemnity in
terms of
section 204
of the
Criminal Procedure Act. He
was a woeful
witness who acted with emotions when expected to answer simple
questions. Why he was never discredited by the prosecution
is
besides me.
He
is thus not granted indemnity from prosecution.
295.5
Stephen Sanders
His statement
to
the police was made in terms of
section 204
but the prosecution did
not ask that he be warned in terms of the section. I thus make no
finding in respect of him.
[296] Having
listened to all the evidence led through the 13 state witnesses
herein and having carefully considered the law and
all the relevant
circumstances and probabilities, it is my considered view and finding
that the accused hereon should not remain
in the accused dock longer
than this moment as the State has not led evidence upon which this
Court acting carefully can convict
him for all the charges he is
facing unless he testifies and incriminate himself.
[297] It is my
further finding that the State has not made out a
prima
facie
case against the accused at the end of its case.
[298] The
manner in which the prosecution was conducted from the time it was
handled by the prosecution team that was replaced by
the present team
violated the accused’s right to a fair trial.
[299
] Accused
is consequently found not guilty and discharged at this stage of the
trial in terms of
section 174
of the
Criminal Procedure Act 51 of
1977
.
_____________________________
F
KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Counsels for the
State:
.......................................
Dakana, Gcaleka & Mashiane
Counsel for the
Accused:
.....................................
Lawrence
Hodes
Date of
Judgment:
................................................
25
th
November 2010