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[2011] ZASCA 249
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Selebi v S (240/2011) [2011] ZASCA 249; 2012 (1) SA 487 (SCA); 2012 (1) SACR 209 (SCA); [2012] 1 All SA 332 (SCA) (2 December 2011)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
C
ase No:
240/2011
In the matter between:
JACOB SELLO SELEBI
….......................................................
APPELLANT
and
THE STATE
….........................................................................
RESPONDENT
Neutral citation:
Selebi
v State
(240/2011)
[2011] ZASCA 249
(2 December 2011)
Coram:
Mthiyane DP,
Snyders, Bosielo, Leach and Theron JJA
Heard: 1 & 2 November 2011
Delivered: 2 December 2011
Summary: Criminal Law –
Prevention and Combating of Corrupt Activities Act 12 of 2004
–
conviction in contravention of
s 4(1)
(a)
─
On
appeal appellant found to have received payment and provided quid pro
quo for such payment as envisaged in
s 4
of Act 12 of 2004.
_____________________________________________________________________
ORDER
On appeal from:
South
Gauteng High Court, Johannesburg (Joffe J sitting as court of first
instance):
The appeal is dismissed.
___________________________________________________________
JUDGMENT
MTHIYANE DP (BOSIELO and
THERON JJA CONCURRING)
Introduction
[1] This is an appeal from a
judgment of the South Gauteng High Court, Johannesburg (Joffe J) in
which the appellant, Mr Jacob Sello
Selebi, a former National
Commissioner of Police and former Head of Interpol, was convicted of
corruption in contravention of s
4(1)
(a)
of the Prevention and
Combating of Corrupt Activities Act 12 of 2004 (the PCCA Act) read
with ss 1, 2, 21, 24, 25 and 26 of the
PCCA Act and sentenced to 15
years’ imprisonment. The judgment is available online as
S v
Selebi
(25/09) [2010] ZAGPJHC 53 (5 July 2010). In summary his
conviction arose from his dealings with Mr Glen Norbet Agliotti and
the
appeal is against the finding by the trial court that he had
received certain payments and benefits in kind from Agliotti and
provided
quid pro quo for such payments and/or benefits.
[2] The appellant appeals to this
court against conviction, but not sentence, with leave of both the
court a quo and, in one respect,
this court (Nugent and Snyders JJA).
Leave of the court a quo was limited to the question whether the
State had proved beyond reasonable
doubt that the appellant had
received payment from Agliotti. This court, on petition, extended it
to include the question whether
‘the State has proved that the
[appellant] has provided Agliotti with any quid pro quo as a result
of gratification received
from Agliotti as envisaged in terms of
Section 4
of the
Prevention and Combating of Corrupt Activities Act
12 of 2004
’.
[3] The indictment alleged that
at the relevant time there existed a corrupt relationship between the
appellant and Agliotti. In
terms of this relationship the appellant
received from Agliotti sums of money and clothing for himself and, on
one occasion, for
his sons. It further alleged that the appellant
received the aforementioned payment (gratification) in order to act
in a manner
prescribed in s 4(1)
(a)
(i)-(iv) of the PCCA Act
and the appellant did so act by way of quid pro quo. As to the
details thereof it was alleged that the
appellant: (a) shared secret
information with Agliotti regarding an investigation against him
conducted by the United Kingdom law
enforcement authorities; (b)
protected Agliotti from criminal investigation; (c) shared with
Agliotti information about South African
Police Service (SAPS)
investigations; (d) shared secret and/or confidential information
with him; (e) agreed to and/or attempted
to influence the
investigative and/or prosecutorial process against one Muller Conrad
Rautenbach; (f) shared with one Stephen Colin
Sanders and/or one
Clinton Nassif and others tender information relating to impending
contractual work to be performed in Sudan;
and (g) assisted Agliotti
and/or Agliotti’s associates to receive preferential or special
SAPS services.
[4] The appellant pleaded not
guilty to the charge. In his plea explanation in terms of
s 115
of
the
Criminal Procedure Act 51 of 1977
the appellant alleged that the
prosecution against him was not bona fide but was instituted with an
ulterior motive. He said that
the case against him was manipulated
with the mala fide intention to discredit him so as to ensure the
continued existence of the
Directorate of Special Operations (DSO).
The DSO was at the time under threat of closure and placement within
the SAPS. The appellant
denied that he had received any payments or
gifts from Agliotti, either for himself or for any other person. He
maintained that
he and Agliotti were friends, and nothing more.
[5] The two key witnesses for the
State on the question of payments and gifts to the appellant were
Agliotti and Dianne Muller.
The credibility of these two witnesses
was severely attacked by the defence. Counsel contended that they had
conspired to give
false evidence against the appellant. Therefore,
the resolution of the question whether the appellant received payment
and gifts
from Agliotti and whether his conduct fell within the scope
of the provisions of s 4(1)
(a)
of the PCCA Act is, in this
appeal, depended upon the acceptance of the evidence of these two
witnesses. At the conclusion of the
trial the court accepted their
evidence. Agliotti’s evidence was accepted only where it was
corroborated in material respects
by Muller and other independent
evidence. The court had no hesitation in accepting the evidence of
Muller whom it found to be a
satisfactory witness.
Issues on appeal
[6] There are two issues to be
decided in this appeal. The first is whether the State succeeded in
proving that the appellant received
payments and/or other benefits
for himself and other people from Agliotti. The second is whether it
proved that the appellant provided
Agliotti with any quid pro quo for
such payment or gratification received as required by s 4 of the PCCA
Act. The question whether
the appellant received payment and/or other
benefits requires a consideration of whether he received such
gratification with a
corrupt intention.
The law applicable
[7] Corrupt activities by public
officers are punishable under s 4(1) of the PCCA Act, which reads as
follows:
‘
(1)
Any─
(a)
public
officer who, directly or indirectly,
accepts
or agrees or offers to accept
any
gratification from any other person
,
whether for the benefit of himself or herself or for the benefit of
another person; or
(b)
person
who, directly or indirectly, gives or agrees or offers to give any
gratification to a public officer, whether for the benefit
of that
public officer or for the benefit of another person,
in order to act,
personally or by influencing another person so to act
,
in a manner
─
that amounts to
the─
illegal, dishonest,
unauthorised, incomplete, or biased; or
misuse or selling
of information or material acquired in the course of the,
exercise, carrying
out or performance of any powers, duties or functions arising out of
a constitutional , statutory, contractual or any other legal
obligation;
that amounts to─
(
aa
) the
abuse of a position of authority;
(
bb
) a breach
of trust; or
the violation of a
legal duty or a set of rules;
designed to achieve
an unjustified result; or
that amounts to any
other unauthorised or improper inducement to do or not to do
anything,
is guilty of the
offence of corrupt activities relating to public officers.’
(Emphasis added.)
[8] In this case we are concerned
with a public officer (the appellant) who accepted gratification
(money and clothing) from a person
(Agliotti), in return for
information and favours. It is not in dispute that the appellant was
at all relevant times a public officer.
He is alleged to be a
recipient
and not a giver of the
gratification referred to in s 4(1)
(a)
in order to act in a manner
envisaged in s 4(1)
(a)
(i)
of the PCCA Act. The essential elements of the general crime of
corruption committed by a recipient are the following: (a) the

acceptance; (b) of a gratification (payment or some other benefit);
(c) in order to act in a certain way (the inducement); (d)

unlawfulness; and (e) intention.
1
Although ‘unlawfulness’
is not expressly mentioned in the definition of the crime,
commentators are of the view that
it must nevertheless be read into
it. It connotes that the act (in this case the acceptance of payment)
should be unjustified as
this is a requirement of every crime. In
general ‘unlawfulness’ means ‘contrary to the good
morals or the legal
convictions of society’
2
.
The same applies to ‘intention’. Therefore it has to be
considered even though it is not specifically mentioned.
[9] The first element
(acceptance) is self explanatory and does not require any
elucidation. As for the second element (gratification)
it is said to
include ‘money, whether in cash or otherwise’.
3
The third element (inducement)
depends on whether receipt of the gratification is directed at
procuring the recipient to act in
one or more of the ways as set out
in the subsection. I have dealt with ‘unlawfulness’. Just
as with ‘unlawfulness’,
‘intention’ referred
to in (e) above, is not specifically mentioned in the definition
section of the PCCA Act but the
definition must be construed as
requiring intention.
4
The recipient must have the
required intention at the moment he receives the gratification.
5
Snyman says:
‘
[I]ntention
always includes a certain knowledge, namely knowledge of the nature
of the act, the presence of the definitional elements
and the
unlawfulness. A person has knowledge of a fact not only if she is
convinced of its existence, but also if she foresees
the possibility
of the existence of the fact but is reckless towards it; in other
words she does not allow herself to be deterred
by the possibility of
the existence of such fact. She then has intention in the form of
dolus
eventualis
.
6
’
The facts
[10] I turn to payments
(gratification), the benefits (quid pro quo) allegedly provided by
the appellant to Agliotti, such as the
reports by the United Kingdom
law enforcement authorities and the extent to which they indicate the
presence or absence of corrupt
intent on the part of the appellant.
Payments
The investigation by KPMG
[11] It is convenient to commence
the discussion of the question of payments by reference to an
investigation by KPMG into the source
of the funds from which
Agliotti allegedly made payments to the appellant. The enquiry into
how the funds were channelled from
Johannesburg Consolidated
Investments Limited (JCI) to Spring Lights 6 (Pty) Ltd (Spring
Lights) and from which Agliotti paid the
appellant was amply covered
by Joffe J in a detailed and careful judgment. I can do no better
than to borrow from his considered
analysis. He described this aspect
of the enquiry as follows. In June 2006 JCI and Rand Gold and
Exploration Company Limited reported
certain suspected offences to
the DSO. KPMG was then appointed by the DSO to assist them in an
investigation which was called ‘Empire
K’. The Empire K
investigation in turn led to a further investigation by KPMG which
related to the appellant. KPMG was asked
to analyse the appellant’s
bank accounts, credit card accounts, investment accounts and foreign
currency trades performed
by him and on his behalf by the SAPS. They
were also asked, given a certain category of transactions identified
by Agliotti in
a draft affidavit, to determine whether they could
identify any transaction with those characteristics in the bank
statements of
Spring Lights and to determine the funding of Spring
Lights. Mr Dean Friedman, who conducted the investigation on behalf
of KPMG,
testified that on 24 August 2005 Messrs Brett Kebble, Roger
Kebble, John Stratton and Hendrik Christoffel Buitendag resigned from

the Board of Directors of JCI. Thereafter a new board was appointed.
The new board instructed KPMG to perform an investigation
into JCI
and its subsidiaries. In December 2005, as part of this
investigation, difficulty was encountered with regard to payments

made to Spring Lights. An enquiry was sent to Agliotti on 19 January
2006 in which he was requested to provide ‘a list of

individuals and/or entities who received payments during the course
of [his] assignment’ and to indicate the total amount
that
Spring Lights received from JCI directly and indirectly. He was also
asked if he himself had received any payments from third
parties who
effected payment on behalf of JCI. The enquiry was responded to in
April 2006. In regard to payments received by individuals
or entities
during the course of Agliotti’s assignment between 5 December
2003 and 31 January 2005 are payments amounting
to R2 224 186. The
recipients were not identified. What however became clear from the
investigation was that Agliotti made payments
of over R2 million to
individuals during that period.
[12] The results of the KPMG
investigation were compiled in a report entitled ‘Report on
factual findings’ dated 19
March 2009. The judge went on to
describe how the paper trail led to the appellant. The portion of the
report pertaining to him
reflects the total income and expenditure as
reflected in the appellant’s bank account for the period 13
January 2003 to
4 January 2007. According to Friedman, and as it
appeared from that report, the income in the appellant’s bank
account exceeded
the expenditure by R152 970.45. An amount of R400
000 which was reflected as an item of expenditure was utilised by the
appellant
to acquire a unit trust investment for his own benefit.
Accordingly, at the end of that period the appellant was better off
than
at the commencement thereof by the value of the unit trust
investment and the surplus of R152 970.45 received in his bank
account
during the relevant period (13 January 2003 to 4 January
2007). The investigation involved an examination of alleged payments
to
the appellant from cash drawn from the Spring Lights account,
details of the transactions in the appellant’s bank account,

details in the appellant’s two credit card accounts and the
appellant’s and his wife’s foreign exchange transactions

and the source of information in respect of the latter. The forensic
investigation also involved a monthly comparison, for the
period
February 2003 to December 2006, of receipts and expenditure from the
appellant’s bank account and credit cards.
[13] The investigation then
proceeded to focus on the period March 2004 to December 2005 with
regard to cheque payments made from
the appellant’s bank
account, cheques cashed on that account, cash withdrawals and the
appellant’s credit card expenditure.
It revealed the following:
(a) there were no cash withdrawals in January, February, March, June,
July, October, November and December
2005 from the appellant’s
bank account; (b) no cheques were cashed on the account in April,
May, July, October and November
2004 and from January 2005 to
December 2005; (c) in January, February and October 2005 no cheque
payments were made from that account;
(d) there was a significant
reduction in credit card expenditure in the months from January to
April 2005 and July 2005. For example
credit card expenditure was
only R465.35 in January 2005 and R188.12 in February 2005; (e) for
the ten-month period March to December
2004, the total of cash
withdrawals from and cheques cashed on the account amounted to R126
048. For the 12-month period from January
to December 2005 the total
of cash withdrawals and cheques cashed amounted to only R358; and (f)
the total expenditure from the
appellant’s bank account for the
period March to December 2004 amounted to R430 899.90. It only
amounted to R231 028.67 for
the period January to December 2005.
According to Friedman the pattern of reduced expenditure continued
into 2006 and only started
picking up during July 2006.
[14] The trial judge then dealt
with the evidence of Friedman who identified seven such cheques that
corresponded to the allegations
made by Agliotti in his draft
affidavit. These are: (a) a cheque for R10 000 dated 14 June 2004
bearing the annotation ‘JSGA’;
(b) a cheque for R10 000
dated 8 November 2004 bearing the annotation ‘COP’; (c) a
cheque for R5 000 dated 18 November
2004 bearing the annotation
‘COP’; (d) a cheque for R200 000 dated 13 December 2004;
(e) a cheque for R100 000 dated
20 December 2004 bearing the
annotation ‘COP’; (f) a cheque for R55 000 dated 12 April
2005 bearing the annotation
‘Gr Chief’; and (g) a cheque
for R30 000 dated 28 September 2005 bearing the annotation ‘Chief’.
These
cheques amount to R410 000 and were cashed between 14 June 2004
and 28 September 2005. They are set out in the following schedule:
Cheque
Number
Counter
foil
Note
Cheque
date
Bank
stamp
Date
Cheque
Amount
R
0127
‘
CASH
JSGA’
14
June 2004
14
June 2004
10
000.00
0201
‘
CASH
COP’
8
November 2004
8
November 2004
10
000.00
0204
‘
CASH
COP’
18
November 2004
18
November 2004
5
000.00
0222
‘
CASH
200 000’
13
December 2004
13
December 2004
200
000.00
0226
‘
CASH
CoP’
20
December 2004
20
December 2004
100
000.00
0271
‘
CASH
GR Chief’
12
April 2005
13
April 2005
55
000.00
0355
‘
CASH
Chief’
28
September 2005
28
September 2005
30
000.00
Total
410
000.00
On the above analysis the
appellant would as at the end of December 2004 have had in his
possession extra cash on hand amounting
to at least R325 000 (being
R410 000 less R85 000), which would then account for the drop in
expenditure between January 2005 and
December 2005. The cash movement
in the appellant’s account during the period March 2004 and
December 2005 as described by
Friedman and in particular the reduced
expenditure during January and February 2005 are illustrated in the
following schedule:
Month
Cheque
payments
Cheques
Cashed
Cash
withdrawals
Credit cards
Expenditure
Aggregate
Total
R
Mar-04
34
281.00
5
088.00
22
000.00
1
550.00
62
919.00
Apr-04
34
187.23
0.00
5
000.00
941.35
40
128.58
May-04
39
888.55
0.00
1
000.00
7
562.49
48
451.04
Jun-04
27
033.84
13
000.00
10
000.00
1
841.78
51
875.62
Jul-04
15
808.72
0.00
16
000.00
3
904.28
35
713.00
Aug-04
29
265.39
6
000.00
11
000.00
7
825.17
54
090.56
Sep-04
24
767.45
2
160.00
10
800.00
2
504.32
40
231.77
Oct-04
31
826.61
0.00
15
000.00
3
242.67
50
069.28
Nov-04
9
377.90
0.00
3
000.00
3
186.95
15
564.85
Dec-04
18
370.60
3
000.00
3
000.00
7
485.60
31
856.20
Jan-05
0.00
0.00
0.00
465.35
465.36
Feb-05
0.00
0.00
0.00
188.12
188.12
Mar-05
19
397.50
0.00
0.00
876.15
20
273.65
Apr-05
11
830.86
0.00
1
000.00
944.75
13
775.61
May-05
15
585.91
0.00
16
300.00
10
462.98
42
348.89
June-05
40
781.70
0.00
0.00
1
152.80
41
934.50
Jul-05
22
406.00
0.00
0.00
0.00
22
406.00
Aug-05
25
287.99
0.00
13
000.00
9
254.37
47
542.36
Sep-05
20
381.66
0.00
5
500.00
1
069.37
26
951.03
Oct-05
0.00
0.00
0.00
2
351.41
2
351.41
Nov-05
3
246.73
0.00
0.00
1
123.21
4
369.94
Dec-05
3
825.00
0.00
0.00
4
596.81
8
421.81
[15] If Agliotti is to be
believed, during November and December 2004 the appellant received
R320 000 made up of the proceeds of
two cheques (one of R200 000 and
the other R100 000) amounting to R300 000 in total and a further R20
000 that he alleged he paid
from his pocket. However, the trial court
entertained a doubt as to whether the appellant received payment of
the proceeds of the
cheque of R200 000 and gave the appellant the
benefit of that doubt. So do I.
[16] During cross-examination
Friedman was asked whether he had encountered Spring Lights account
cheques or counterfoils to cheques
in which reference was made to
John Stratton either by name or by use of the initials ‘JS’.
He replied that he had
no independent recollection of such cheques.
He was then asked to inspect Spring Lights’ cheques and
counterfoils to ascertain
whether there were any which referred to
John Stratton as ‘JS’. Friedman did the exercise and
found three such cheques.
The cheques were made out to Monster
Marketing CC. The first cheque no 159 dated 3 August 2004 was in the
amount of R182 274.30.
The cheque stub is annotated ‘JSMB’.
The second cheque, which is cheque no 193 dated 12 October 2004 was
in the amount
of R18 607.44. The cheque stub is annotated ‘JS
Car’. The third cheque no 213 dated 1 December 2004 was in the
amount
of R18 607.44. The cheque stub is annotated ‘Car JS’.
It is clear from the evidence of Friedman as set out above that

payments that bore the initials ‘JS’ referred to payments
to Stratton in respect of his motor vehicle. It is also clear
that
the amounts with which Agliotti was allegedly able to effect the
payments, that are the subject of the dispute in this matter,
were
drawn from the Spring Lights account, which was used by JCI as a
corporate vehicle to channel funds to Agliotti.
Individual payments and gifts
[17] I turn to a discussion of
the individual payments which the trial court found to have been
proved against the appellant. These
are:
(a) R110 000;
(b) R30 000 by means of a cheque
dated 28 September 2005, the counterfoil of which indicates that it
is payable to ‘Cash (Chief)’;
(c) R10 000;
(d) an unspecified amount of US
Dollars; and
(e) gifts.
(a)
Payment
of R110 000
[18] The trial court’s
approach to the question of payments was to accept that those
payments were made to the appellant where
there was corroboration for
Agliotti’s evidence, firstly, because of the credibility
finding made against him and secondly,
because he was a single
witness in respect of some of the payments.
7
As far as the two big payments of
R200 000 and R120 000 are concerned the court found that there was no
corroboration for Agliotti’s
evidence in respect of the payment
of R200 000. There was however what the court described as potential
corroboration in respect
of the payment of R120 000. The court then
proceeded to deal with the first payment of R110 000. It bears
mention that the payment
of R110 000 was largely derived from the
proceeds of a cheque for R100 000 dated 20 December 2004 which was
drawn to cash. The
counterfoil of the relevant cheque has the word
‘CoP’ noted on it. The court found this to constitute
potential corroboration
for the payment of R120 000. The note on the
counterfoil was made by Mr Martin Flint, the Chief Financial Officer
of Spring Lights.
Agliotti, in his evidence, pointed out that he
assumed that ‘CoP’ referred to the appellant. The trial
court dealt
with and analysed in detail the evidence of Flint in
respect of this cheque. Flint testified that when Agliotti asked for
a cash
cheque he would furnish him with a brief description of the
purpose of the cheque. Flint would make a note of this on the
counterfoil
to enable him to identify the payment if Agliotti ever
queried it. Flint maintained that what was written on the counterfoil
was
always based upon that which Agliotti had told him. In respect of
the note ‘CoP’ Flint testified that he had no idea
what
it meant. During cross-examination he said he thought it related to a
retired policeman called Bezuidenhout. Bezuidenhout
had suffered a
serious accident and Agliotti had agreed to help him. Flint recalled
that the policeman concerned came to Maverick’s
8
old offices where he would be
given payment. Flint however later recalled that at the time that
this particular cheque of R100 000
was made out Maverick had moved to
a new office. Flint had no recollection of Bezuidenhout calling at
the new premises to collect
cheques.
[19] Flint’s ignorance of
the origin and meaning of the annotation ‘CoP’ on the
counterfoil left the trial court
with the impression that he was
endeavouring to exculpate himself from any wrongdoing. The court
however found it significant that
Flint associated the payment with a
policeman, or albeit the retired policeman, Bezuidenhout. Having
regard to the probabilities
the court concluded that the counterfoil
of the cheque for R100 000 which read ‘CoP’ was likely to
refer to the appellant
and thus provided some corroboration for
Agliotti’s evidence.
[20] Secondly, the court found
that Muller’s evidence also provided corroboration for this
payment having been made to the
appellant. It is true that there are
many differences between the evidence of Agliotti and that of Muller
in respect of this payment.
Firstly, on Agliotti’s version
Flint cashed the cheque and handed the R100 000 to Muller in the
offices of Maverick before
Agliotti had arrived at Maverick’s
premises. Agliotti said he only handed Muller R20 000 in cash to add
to the R100 000.
This is however contradicted by Muller. Muller
testified that Agliotti had handed her all the money which he had
taken from his
briefcase and that he had asked her to check that it
amounted to R110 000. Secondly, according to Agliotti an amount of
R120 000
was handed over to the appellant in the boardroom. Muller is
adamant that only R110 000 was handed over to the appellant. Thirdly,

Agliotti made no mention of the fact that Muller had told him that
she had removed R10 000 from the money that she had counted.
On the
contrary, according to Agliotti he had wanted to give as much money
as he had to the appellant. It was for that reason that
he added R20
000. Fourthly, Agliotti testified that the money was paid to the
appellant because the latter had informed Agliotti
that he had
problems. Muller testified that the money was paid over for a holiday
for the appellant and his family. Fifthly, Agliotti
testified that he
had arrived at Maverick and that shortly thereafter the appellant
arrived. Muller testified that the appellant
had arrived first and
that Agliotti had informed her prior to the arrival of the appellant
that the appellant would arrive first
and that she should make coffee
for him whilst he waited.
[21] The judge concluded that had
Muller and Agliotti conspired with each other to give false evidence
against the appellant these
differences would have been avoided. He
concluded that their very presence, meaning differences, whilst
creating some possible
difficulty in regard to reliability or
cogency, gave their evidence credibility. The differences were not so
extensive as to render
it impossible to make a finding that the
payment had been made to the appellant.
[22] It bears mention that the
trial judge was best placed to consider and assess the evidence. He
had the opportunity and the advantage
of observing Muller when she
testified and to assess the credibility of the evidence with due
regard to her demeanour in the witness
box. The learned judge noted
that when at the end of Muller’s cross-examination, it was put
to her that the appellant denied
that he ever received payments from
Agliotti, she turned her face looked directly at the appellant and
said: ‘That is not
the truth’. The judge further observed
that Muller’s reaction did not appear to be contrived. It gave
her evidence
what the judge described as ‘the stamp of
credibility’. He concluded that despite all the criticism of
her evidence
the stamp of credibility was justified and her evidence
in general was accepted. There is no basis to interfere with that
finding.
9
The judge accordingly found that
Muller’s evidence does serve as corroboration of payment to the
appellant. Agliotti testified
that the payment was R120 000. Muller
testified that the payment was R110 000. The court found that her
evidence in respect of
R110 000 was convincing and it was accordingly
held that her evidence was corroborative of the payment as testified
by Agliotti
up to that amount. The judge adopted a cautious approach,
which has stood the test of time, and therefore he cannot be faulted
in accepting the evidence of Agliotti where it was corroborated by
independent evidence.
10
[23] Additional corroboration for
the State’s case in respect of this payment is to be found in
the evidence of Friedman.
He testified in regard to the appellant’s
bizarre spending pattern in the relevant period. In January 2005 the
total amount
paid out of the appellant’s bank account amounted
to only R465.35 and in February 2005 to R188.12. No credible
explanation
for this was provided. The appellant’s wife, who
was said to be the person in charge of the household finances, was
not called
as a witness to explain this. The absence of cash cheques
or cash withdrawals also referred to in Friedman’s report was
not
explained. On the face of it the appellant must have had some
other source of funds and the payments from Agliotti provide a
plausible
explanation for his altered spending pattern.
[24] The judge also found further
corroboration for this payment having been made by Agliotti to the
appellant, in the appellant’s
foreign currency transactions.
The appellant had received an advance for a visit to France in the
amount of R8 537.17 for his journey
on 3 June 2005. Notwithstanding
this the appellant utilised the sum of R13 064.15 to purchase euros.
However, after the visit the
appellant sold 680 euros at a rand value
of R5 193.90 on 28 June 2005. The trial court found that the
appellant had excess cash
in his possession, which he was unable to
explain.
[25] The judge then referred to
another foreign currency transaction. Here the appellant received an
advance of R8 954.81 for a
trip in July 2005. Notwithstanding this
the appellant utilised the sum of R21 796.65 to purchase $3 152 on 28
July 2005. After
the visit the accused sold $2 237 at a rand value of
R14 020.70 on 19 August 2005. It was found that the appellant had
spent slightly
less than his advance. He was once again unable to
furnish an explanation for his conduct. The court considered these
transactions
to provide corroboration for Agliotti’s evidence
that the appellant had received payment of the amount of R110 000.
Confronted
with the State’s case as set out above and having
regard to the poor quality of the appellant’s evidence, the
court
came to the conclusion that the appellant’s denial of
receipt of payment of R110 000 was not reasonably possibly true.
(b)
Payment of R30 000
[26] The next payment in respect
of which corroboration was found is the payment of R30 000 which
represents the proceeds of a cheque
dated 28 September 2005.
[27] This cheque was dated the
day after Brett Kebble died. The judge then dealt with how the amount
was paid to the appellant.
In re-examination Agliotti stated that on
the day after Kebble died, he had to go and identify Kebble’s
body. He did not
know where the mortuary was. He went to Nassif’s
office for assistance. Nassif instructed one of his employees, André

Burger, to show Agliotti where the mortuary was. Whilst driving in
the car to the mortuary the appellant phoned Agliotti and asked
for
money. Although counsel for the appellant initially objected to this
evidence the objection was abandoned when cellular phone
records were
produced which reflected the disputed call. There was a futile
attempt to link the R30 000 to an Interpol dinner but
this floundered
when it turned out that the dinner occurred in September 2004. The
payment in dispute here had been made on 28
September 2005. The
suggestion by the defence that the R30 000 was in fact not paid to
the appellant but used by Agliotti as a
clearance payment for a drug
transaction that he was involved in, was rejected by the court. The
counterfoil of the cheque reflects
‘Chief’ and the fact
that the appellant was the only person who was referred to by
Agliotti as Chief, makes nonsense
of the latter suggestion. The court
accepted that sufficient corroboration had been provided for the
payment under this heading.
(c)
Payment of R10 000
[28] The court was satisfied that
the counterfoil linked the payment of this cheque to the appellant.
Flint originally linked this
payment to another policeman. He however
later changed this in his evidence. The court concluded that the
counterfoil to the cheque
served as corroboration for Agliotti’s
evidence. The cheque in question is dated 14 June 2004 and has
annotated on it the
words ‘JSGA’. In the context of this
case the appellant is the only person who would fit the description
of ‘JS’.
There is a compelling inference that ‘GA’
refers to Glen Agliotti. I have already referred to the unlikelihood
that
the retired policeman, Bezuidenhout or John Stratton might be
the person to whom these annotations refer. I find the reasoning of

the court and the conclusion to which it came in this respect to be
beyond reproach.
(d)
An
unspecified amount of US Dollars
[29] Agliotti testified that he
paid the appellant $30 000 in three payments. The one payment was
made in the first class lounge
in the International Departure Hall at
O R Tambo International Airport. The appellant denied receipt of this
payment. Agliotti
was found to have received $100 000 on 22 April
2005 from Mr Muller Conrad Rautenbach.
11
In this regard it was put to the
appellant that he went to Cyprus for an Interpol regional conference
from 23 May 2005 to 28 May
2005. The appellant received an advance in
respect of the expenses of this trip from the SAPS of 700 euros which
was acquired at
a cost of R5 900.75. On his return to South Africa
the appellant’s actual expenses were calculated to the sum of
R6 223.62
and claimed from the SAPS. This resulted in a nett amount
of R322.87 being paid to the appellant. Included in the claim was an
amount of 508.99 euros or dollars in respect of accommodation. On his
return to South Africa on 28 May 2005 and contrary to his
normal
practice of allowing Ms Eunice Elizabeth Grové, his personal
secretary, to attend to his foreign currency transactions,
the
appellant sold $2 500 at O R Tambo International Airport. This
occurred one month after Agliotti had received the $100 000
from
Rautenbach. When the appellant was asked to indicate where the
dollars had come from, he could not do so. Instead, he furnished
a
number of unsatisfactory responses. His first response was that he
would have received the foreign currency from the Cyprus trip.
It was
then pointed out to him that the advance of foreign currency for this
trip had been in euros. The appellant then changed
his version to say
that the advance was from Interpol. To avoid the suggestion that he
had been paid for the same expenditure by
the SAPS and Interpol, he
stated that the SAPS advance was returned to the SAPS and the
Interpol allowance was used. This was rightly
rejected by the court
as simply not true. The explanation was simply fanciful.
[30] The court found that this
amounted to corroboration of Agliotti’s evidence that he gave
the appellant US Dollars albeit
not in the amount of $30 000. It held
that the State had proved beyond reasonable doubt that Agliotti paid
an indeterminate amount
in US Dollars to the appellant. I agree.
(e)
Gifts
[31] The question of gifts does
not appear to be covered by the leave granted by the court a quo,
which refers only to payments.
To the extent that gifts constitute
‘gratification’ as defined and for the sake of
completeness a brief discussion
would, in my view, not do any harm to
the judgment. On the question of gifts the court found that there was
corroboration for Agliotti’s
evidence that clothing was bought
for the appellant’s sons. Muller also testified in that regard.
When it was put to her
at the conclusion of her cross-examination
that the appellant denied that Agliotti ever purchased clothes at
Fubu for the appellant’s
children she responded with conviction
and whilst looking at the appellant said: ‘That is a lie’.
The appellant did
not seek to place the evidence of his wife or sons
before the court in this regard. The court finally concluded that the
State
succeeded in proving beyond reasonable doubt that the appellant
received payments and gifts from Agliotti to the extent indicated
in
its judgment.
Benefits / Quid pro quo
[32] This aspect of the case
falls within the extension of leave granted by this court. The
question to be considered here is whether
the appellant provided
Agliotti with any quid pro quo for the payments made to him by
Agliotti as required by s 4(1)
(a)
(i)
of the PCCA Act. The trial court identified four instances that
constituted such quid pro quo. The first was a UK report which
the
appellant showed to Agliotti. Commissioner Martin Hankel, then a
Section Head of Intelligence in the SAPS, gave evidence in
relation
to a number of UK reports. He said that he was requested to identify
all the reports that could be found pertaining to
Agliotti. There
were six such reports in total, according to the SAPS, where there
was either content that related to Agliotti
or a reference to
Agliotti. His evidence was not challenged by the appellant. Neither
was the evidence tendered by Agliotti in
this regard challenged. He
testified that he was shown a document by the appellant. The
appellant asked him to read it and he thereafter
questioned Agliotti
about his knowledge of and relationship with the people mentioned in
the report. The appellant then told Agliotti
that he (Agliotti) was
‘being monitored or [his] movements were’. Agliotti
testified that the report that he was shown
had a particular
appearance. According to him it bore a coat of arms and ‘either
a HSM or Her Majesty’s customs something
to that effect’.
It cannot be disputed that one of the reports that was placed before
the court, has a coat of arms and the
words ‘HM Customs and
Excise’ in bold print on it and refers to Agliotti in the
context of an investigation into possible
criminal conduct on his
part. As to the purpose of being shown the document, Agliotti
testified that the appellant wanted him to
know that the UK
authorities were monitoring his movements. I agree with this finding.
[33] In its assessment of the
evidence pertaining to this document the court observed that the UK
report was not the type of document
that the man in the street would
have knowledge of. The document was at all times in the possession of
the SAPS. There is no suggestion
that Agliotti could have gained
knowledge of the existence and the content of the document from any
source other than a source
connected to the SAPS. Whilst Agliotti
could not recall the content of the document completely accurately,
his recollection of
the content and appearance thereof was considered
by the court to be sufficient to establish that the document I have
described
was the document that was shown to him.
[34] On the evidence the
conclusion is unavoidable that the only person who could have shown
the document to Agliotti is the appellant.
This conclusion was
arrived at notwithstanding the comments made in respect of Agliotti’s
general credibility and the fact
that he was a single witness. The
court concluded that there was sufficient corroboration for
Agliotti’s evidence in this
regard. The appellant’s
denial that he permitted Agliotti to read the UK report was therefore
considered by the court not
to be reasonably possibly true. I cannot
find fault with the reasoning of the trial judge.
[35] Counsel for the appellant
argued that Agliotti would not have benefitted from being shown the
HMS document as he was already
referred to in the press as an
international drug dealer. While the trial court accepted this to be
so, it held that Agliotti could
still benefit from being warned that
the United Kingdom police were investigating him. To tell someone
involved in criminal activities
that the police in two countries are
interested in his movements, will serve to put him on his guard and
potentially cause him
to take additional precautions as not to permit
his activities to be uncovered. The inference is inevitable that by
showing Agliotti
the document the appellant warned Agliotti of the
interest the United Kingdom authorities had in him and the fact that
their interest
was known to the SAPS as well. The trial court found
that the appellant had showed the UK document to Agliotti for the
benefit
of Agliotti. I agree with that conclusion.
[36] The second benefit that
Agliotti allegedly received from the appellant related to the
National Intelligence Estimate (NIE report).
This document indicated
that Jurgen Kögl, a businessman, was gathering information on
the supposed illegal activities of the
appellant. Kögl alleged
that the appellant received large sums of money from the Kebbles
emanating from questionable business
deals concluded on his behalf.
The document concerned was described as the 2005 NIE report. In his
evidence the appellant admitted
that he showed a document to Agliotti
that contained a reference to Kögl. He explained that the reason
he did so was to show
Agliotti the name of Jurgen Kögl. He was
concerned that he would not remember the spelling. The court rejected
this flimsy
explanation. There is no reason why the name could not
have been noted on a piece of paper if the only reason for showing
Agliotti
this was because the appellant could not remember the
spelling. The court found that the appellant shared this information
with
Agliotti to enable Agliotti and the Kebbles to take steps to
protect themselves. Accordingly, the portion of the NIE document was

shown to Agliotti for the benefit of Agliotti and the Kebbles. The
appellant’s evidence that he showed a document to Agliotti

provides, in itself, corroboration for Agliotti’s evidence that
the appellant showed him a document and moreover, corroboration
that
the document had to do with Jurgen Kögl.
[37] The third document found to
have been showed to Agliotti by the appellant was an e-mail that
contained a statement by one Bill
Smith implicating Agliotti in
certain drug activities. It also referred to a meeting of members of
the Scorpions at which a Mr
Paul O’Sullivan was present.
Agliotti stated that the appellant handed him an e-mail which the
appellant said provided proof
that O’Sullivan was behind the
media campaign against him and that Agliotti should hand it to his
lawyer so that he could
take the necessary legal steps against
O’Sullivan. Thereafter, Agliotti benefitted by being placed in
possession of this
documentation.
[38] The fourth benefit
identified, by the court that Agliotti received from the appellant,
was his ability to secure the attendance
of the appellant at dinners
and meetings where his presence was requested. The appellant did not
challenge Agliotti’s evidence
in this respect. It was
Agliotti’s evidence that he arranged meetings or dinners
between the appellant and the Kebbles and
their associates; between
the appellant and James Tidmarsh, Rautenbach’s lawyer; between
the appellant and Nassif when the
Jumean issue was raised; and
between the appellant and Gavin Varejes with whom he had business
dealings. This was also not challenged.
After the hearing of the
application for a discharge of the appellant at the end of the State
case the appellant advanced a different
case to that which his
counsel had put forward until then. Firstly, he said that the he
resisted Agliotti’s request to eat
with the Kebbles for two
years. Secondly, he claimed that it was he who called the meeting
with Tidmarsh and thirdly, it was Nassif
that had arranged the Jumean
meeting directly with him. The court rejected all of this and found
that the appellant could be and
was made available through Agliotti.
This was the reason why Rautenbach paid Agliotti $100 000 after
originally refusing to do
so. As Rautenbach put it, Agliotti had at
least managed to raise Rautenbach’s issues with the appellant.
This was valued
at $100 000. Accordingly, this was considered by the
court to be a benefit to Agliotti. The court found that the meetings
between
the appellant and the Kebbles were arranged by Agliotti. It
found that it was inconceivable that the appellant would have been
willing to be in the company of the Kebbles and their associates, let
alone have dinner with them. The appellant knew the Kebbles
were
subjected to police monitoring. The court found that the meetings
were arranged by Agliotti and attended by the appellant.
They were
not attended out of friendship but because the appellant was
obligated to go to them by reason of the payments made to
him by
Agliotti. The court held that the State accordingly proved the
benefits to Agliotti and that such benefits were provided
by the
appellant. In my view the reasoning and the conclusion reached by the
trial court is compelling and I find it acceptable.
Intention / mens rea
[39] I turn to consider the
question whether the State succeeded in proving beyond reasonable
doubt that the payments were received
from Agliotti and any quid pro
quo was afforded with the requisite mens rea. I have already alluded
to the fact that s 4(1)
(a)
(i)
of the PCCA Act does not specifically refer to intention but rather
uses the words ‘in order to act, personally or by
influencing
another person so to act . . .’. According to Burchell these
words at least import some ‘intention’
element. Besides,
there is a presumption in our law that mens rea is required for a
contravention of a statutory provision.
12
In the case of a contravention of
s 4 of the PCCA Act the legislature has made it easier for the State
to prove the presence of
‘intention’. Section 24 of the
PCCA Act provides that once the prosecution has proved that
gratification (payment)
was accepted or agreed and the State can show
that despite having taken reasonable steps, it was not able with
reasonable certainty
to link the acceptance of the gratification to a
lawful authority or excuse on the part of the person charged, and in
the absence
of evidence to the contrary which raises reasonable
doubt, it is sufficient evidence that the person charged accepted
such gratification
of that person ‘in order to act’ in a
manner envisaged in s 4 of the PCCA Act. The provisions relate to a
rebuttable
presumption of mens rea, including knowledge of
unlawfulness, which is rebuttable by the person charged.
[40] In the present matter there
is no need to invoke the presumption contained in s 24 of the PCCA
Act given the abundance of evidence
from which a corrupt intention
can be inferred. On his own evidence the appellant knew as early as
August 2003 that Agliotti was
using his name to get money from the
Kebbles. He knew that Brett Kebble had a problem with the South
African Revenue Service. He
also knew that Agliotti was the kind of
person that would use this relationship to benefit himself
financially and yet he continued
to go to Agliotti and to associate
with him.
[41] There is also the question
of the appellant’s assertion in evidence that he knew that if a
‘hustler’ like
Agliotti gave him anything he would
immediately know that it was for an illegal purpose. He added that if
Agliotti made any payment
to him he would know that he intended to
induce him to afford him some favours in one way or another. This
concession is illustrated
in the following passage during
cross-examination:
‘
.
. . What I am saying is, if it happened that Mr Agliotti gave you R50
000 and you took it, that would have been wrong? --- That
would have
been wrong to me.
Why? --- Because it
is an inappropriate thing to do.
Especially if you
are the Head of the police? --- Yes.
And you would know
that if a man, and I can take you through the record, you said, but
if it is necessary, if a man like Agliotti,
a hustler would offer you
money you would thin[k] there is something behind this, am I right?
--- I would think so.
He is trying to buy
my favour or do something if he offered me a large amount of money,
am I right, that would have been your story?
--- Yes.’
[42] Clearly in these
circumstances there can be no question that once it was proved that
the appellant received payments from Agliotti,
the inference was
irresistible that it was for an illegal purpose and with knowledge of
that illegal purpose. It follows therefore
that the court having
accepted that payments took place, found that the State had succeeded
in establishing beyond reasonable doubt
that the payments were
accepted by the appellant with the requisite corrupt intention.
[43] It is also clear from the
way the appellant dealt with Agliotti that he would not have believed
that he was acting lawfully.
The visits to Maverick to collect
payments took place during office hours. Whenever the appellant
visited there he was not accompanied
by any of his colleagues from
the police. Secondly, the UK reports that were shown to Agliotti were
done without Hankel’s
knowledge or consent. The appellant
offered no explanation why a National Commissioner had to exhibit
documents to a person of
questionable repute. Thirdly, in none of the
meetings with the Kebbles, Agliotti and their associates were any of
the appellant’s
colleagues present. Fourthly, one of the
documents, namely the e-mail, was shown to Agliotti at a parking lot
outside Makro in
Woodmead. If there was nothing wrong with the
transaction it is not clear why Agliotti was not called to the
appellant’s
office and shown the document there. All of the
above are in my view further indicators that the appellant knew that
what he was
doing was wrong and provide sufficient proof of his
guilty state of mind.
Conclusion
[44] There can therefore be no
question that the State succeeded in proving the guilt of the
appellant beyond reasonable doubt and
the court a quo was justified
in convicting the appellant of corruption in contravention of s
4(1)
(a)
of
the PCCA Act.
[45] In the result the following
order is made:
The appeal is dismissed.
______________________
K K MTHIYANE
DEPUTY PRESIDENT
SNYDERS JA (LEACH JA
concurring)
[46] I have had the benefit of
reading the judgment of Mthiyane DP. I agree with the conclusion that
he arrives at, however, I have
taken a specific view of this matter
that needs to be stated separately.
[47] At the outset it is
necessary to supply a short sketch to explain the context of
different personalities mentioned in relation
to the instances of
corruption that the appellant were convicted of in the court below.
The point of commencement is the appellant.
He was the National
Commissioner of Police in South Africa for the period during which
the charges arose and also, since October
2004, the President of
Interpol. During this entire period he had a close relationship with
one Agliotti, an individual who had
no particular occupation, but
described himself as a businessman who busied himself at times with a
form of import and export and
the clearing of containers. He was
also, from his own mouth, a drug dealer, having pleaded guilty to
such a charge during 2006.
The true nature of their relationship is
something I return to later in this judgment. Agliotti also had a
close relationship with
Brett Kebble, a businessman who, with his
father Roger Kebble (the Kebbles), was the director of several mining
companies, including
Johannesburg Consolidated Investments Ltd (JCI).
John Stratton was one of the directors of JCI and, according to
Agliotti, a close
confidant of Brett Kebble. The Kebbles bought a
company from Martin Flint called Spring Lights Co (Pty) Ltd (Spring
Lights) and
used its bank account to make money available to Agliotti
to perform a variety of tasks for them. Flint was kept on as the
financial
director of Spring Lights. He is the father of Diane
Muller, Agliotti’s fiancé during the relevant period.
Muller
conducted her own very successful events organising business,
initially known as Monster Marketing CC, from offices that were
shared
by both Agliotti and Flint. Flint was the accounting officer
for Monster Marketing CC. Clinton Nassif was closely connected to
Agliotti and the Kebbles. He conducted private investigations and
provided security services, varying in nature, for the Kebbles.
Billy
Rautenbach was a businessman in South Africa who was under
investigation by the since disbanded Directorate of Special
Operations
(DSO), known as the Scorpions, for a variety of alleged
commercial crimes, who left South Africa when a warrant for his
arrest
was issued. Tidmarsh is a Swiss attorney who acted for
Rautenbach. Bulelani Ngcuka was the former National Director of
Public Prosecutions
during the time of the investigation of the case
against Rautenbach. Ngcuka was succeeded by Vusi Pikoli who filled
that position
during the time that the case against the appellant was
investigated until shortly before the appellant was arrested.
[48] The appellant was charged
with a broad range of alleged instances of corruption committed
during his term as National Commissioner
of Police, consisting of the
receipt of money, gifts and favours from Agliotti in return for
protection, favours and information.
He was convicted of four
instances of receiving money and one of receiving clothing for his
two sons. The trial court found that
the appellant gave quid pro quo
for what he received from Agliotti, in the form of imparting
information to Agliotti by showing
him three different documents and
by attending dinners and meetings at Agliotti’s request.
[49] Agliotti was the main
witness against the appellant. The general gist of his evidence was
that he had made several payments
to the appellant, which the latter
received. The trial court found his evidence to have been unreliable.
The appellant testified
in his own defense and his testimony was
found to have been substantially dishonest. One witness, Muller,
stood out during the
trial as honest and reliable. The trial court
convicted the appellant on the basis of objective corroboration for
Agliotti’s
evidence. In this court the credibility findings by
the trial court are not attacked except in respect of Muller.
Therefore the
issues in this appeal are: first, did the trial court
err in finding Muller a credible witness, and second, did the trial
court
err in concluding that there was sufficient corroboration for
Agliotti’s version to have established the appellant’s

guilt beyond a reasonable doubt.
[50] Muller’s evidence was
attacked on three bases: first, that she had contradicted herself;
second, that she had a vested
interest to support Agliotti’s
evidence; and third, that she and Agliotti conspired to falsely
incriminate the appellant.
It is evident from the judgment of the
trial court and the heads of argument on behalf of the appellant in
this appeal, that the
criticisms by the appellant of Muller’s
evidence is no different in this court than it was in the trial
court. The judgment
by the trial court convincingly answers each and
every one of those criticisms and the appellant failed, in this
court, either
in the heads of argument or during argument, to
indicate any errors made by the trial court in that regard. It is
therefore hardly
necessary to go into any particular depth on this
issue. Such an exercise would amount to mere repetition of what has
been thoroughly
canvassed.
[51] It is trite that this court
will not lightly interfere with a credibility finding of a trial
court.
13
There is nothing in the record
that suggests that the trial court was wrong in its conclusion. The
alleged contradiction in her
evidence, the only one pointed to, is
not real. A careful reading of the record illustrates that she only
testified about one specific
incident that sustains the inference
that the appellant received a specific direct payment from Agliotti.
She never tried to suggest
she saw other such instances and never
suggested that she saw the appellant leave Agliotti’s office
with an envelope that
could possibly have contained money. The
submission that she contradicted herself is unfounded.
[52] Her alleged vested interest
in Agliotti which the appellant suggests motivated her to have lied,
is based on the following
facts: she was also the recipient of money
from the Spring Lights account; she is his former girlfriend; she
remained friendly
with Agliotti even after they terminated their
relationship; and continued to travel together. Although this
criticism is based
on fact, the submission that the facts motivated
an inclination to lie was at no stage apparent during the trial. On
the contrary,
during her evidence she dispelled any possible basis
for such an inference. She was running a highly successful and
profitable
business and was not in any way dependant on Agliotti for
income, and the amounts she did receive from Spring Lights were not
gratuitous
payments but the fulfillment of promises made by Agliotti
arising out of their relationship. She said she had no reason to
become
his enemy after they split up and their continued travels
suited them both. The submission on behalf of the appellant is
opportunistic
and contrary to the essence of her evidence.
[53] A conspiracy between
Agliotti and Muller finds no support in the facts. The trial court
correctly pointed to the fallacy of
such an argument: that there was
no opportunity for such conspiracy (this will become apparent later
in this judgment), that the
many discrepancies between them is
destructive of any conclusion that they conspired, and that neither
of them at any stage illustrated
an inclination to incriminate the
appellant. On the contrary, Agliotti adamantly insisted, to the very
end, that he never ‘bribed’
the appellant.
[54] There exists no basis on
which this Court is entitled to interfere with the credibility
finding by the trial court in relation
to Muller’s evidence.
[55] During November 2006
Agliotti was arrested as a suspect in the murder of Brett Kebble.
Once in jail he was anxious to be released
on bail. One route open to
him was to provide the investigating and prosecuting authorities with
useful information as a bargaining
tool to obtain his release. For
this purpose he started compiling notes in point and word form about
payments made to the appellant
and the quid pro quo received from the
appellant. When he made these notes he had no access to any
documentation that he could
draw information from or use to stimulate
his memory. He also had no contact whatsoever with Muller.
Significantly there was no
investigation of the appellant at this
stage. Objective evidence at the trial corroborated some of the
contents of these notes
and illustrate why the trial court was
justified in its conclusion that there was not only no opportunity
for a conspiracy between
Agliotti and Muller, but no actual
conspiracy.
[56] Agliotti testified about the
nature of the relationship that he had with the appellant. According
to him they were close friends.
He described himself as a generous
person who spontaneously gave gifts to people that he encountered a
fact that was confirmed
by the appellant. As the appellant was a
close friend of Agliotti, he also benefitted from that same
generosity. However, in that
relationship the generosity took on a
whole new dimension. In the appellant’s own words, Agliotti was
a person constantly
in need of recognition, and he therefore flaunted
his close relationship with the appellant. This close relationship
with the appellant
enabled Agliotti to secure a fee of R12 million
from the Kebbles with the assurance to them that the appellant was
‘on board’.
This evidence was unchallenged and clearly
reveals that the co-operation of the appellant came with a
substantial price tag. Clearly
the Kebbles indulged in activities
that required the co-operation of the appellant outside his normal
duties as chief of police
and for that they were prepared to pay
substantial money. Agliotti was able to offer the co-operation of the
appellant, whether
real or illusory, because of the close
relationship that he enjoyed with him. Against this background
Agliotti testified to numerous
payments of various amounts that he
made to the appellant. This occurred over a period of years and, by
the very nature of such
payments, no record of them was kept.
Understandably, he was vague about the details.
[57] Muller corroborated Agliotti
about the nature of the relationship between him and the appellant.
She was not a witness to most
of the details regarding payments to
the appellant, but heard about them from Agliotti. She did, however,
testify to numerous instances
that she was asked by Agliotti to
prepare envelopes containing amounts of money. On many of the
envelopes she was instructed to
write the initials JS. She assumed,
but did not know, that it referred to the appellant. However, the
appellant always called at
their offices or sent his driver soon
after such envelopes were prepared. Although she never saw the
appellant receive such an
envelope, she was convinced the money was
for him.
[58] The use of the initials JS
became a point of intense debate. The suggestion on behalf of the
appellant, based on the evidence
by Flint, was that it could also
have referred to John Stratton. Flint testified that, not having
known whose initials J S were,
he assumed it was John Stratton as
they had frequent dealings with Stratton at that stage as Muller and
Flint, on behalf of Monster
Marketing CC, were busy negotiating a
black economic empowerment (BEE) deal with the Kebbles and Stratton
on behalf of JCI. He
also said that Stratton, wanted to buy a new car
but required bridging finance. He asked that the deposit on the car
and some of
the initial monthly payments be made from the Spring
Lights account. They obliged as it was the intention that Monster
Marketing
would become a JCI entity after the BEE deal had been
concluded. The deal then fell through. An investigation by a firm of
chartered
accountants revealed three cheques that accorded with this
evidence. They were dated 3 August 2004, 12 October 2004 and 1
December
2004 respectively. Not one of them is part of the payments
that the appellant has been charged with. The first cheque is made
out
to Monster Marketing in an amount of R182 274.30. Its stub refers
to JSMB and Nedbank. This information is clearly reconcilable
with a
payment of a deposit on a Mercedes Benz motor vehicle for John
Stratton. The second and third cheques are for the same amount,
R18
607.44, made out in favour of Monster Marketing, and the stubs of
both refer to ‘JS Car’. This information is clearly

reconcilable with the payment of two installments on John Stratton’s
car.
[59] The contrast between these
cheques and those the trial court accepted as corroboration for
payments made to the appellant will
become evident as the evidence is
discussed. Suffice it to say at this stage that all of the cheques
that the trial court accepted
as corroborating evidence were made out
to cash, in round figures and were not made out at regular intervals.
[60] The trial court, faced with
the absence of reliable, detailed evidence from Agliotti, exercised
what can only be described
as extreme caution and only convicted the
appellant on the basis of a few payments for which clear
corroboration existed.
[61] Agliotti’s prison
notes refer to payment of R300 000 to the appellant. It was
unchallenged that when he consulted with
his counsel about these
notes, the latter, as a result of the content of the consultation,
made his own notes on the same paper.
Above the amount of R300 000
counsel wrote ‘split trace cheques – Martin’ (the
reference to Martin clearly being
to Flint). The cheques were
subsequently traced and two cash cheques were found that was made out
during December 2004, one for
R100 000 and one for R200 000. Agliotti
testified that the proceeds of the R100 000 cheque, which he
instructed Flint to draw,
were paid to the appellant. He added R20
000 to it and asked Muller to pack it into an envelope, which he
handed to the appellant
in the boardroom of Muller’s business
premises. The trial court concluded that the money from the R100 000
cheque was paid
to the appellant. Before looking at the details of
the cheque, Muller’s evidence provides an important focus.
[62] Muller testified to a cash
payment of R110 000 by Agliotti to the appellant at her offices
during December 2004. Shortly stated,
the details of her evidence is
that, towards the end of 2004 Agliotti handed her a large amount of
cash and told her to pack R110
000 of it into a bank bag. On counting
the money she found it amounted to R120 000. She therefore
removed R10 000 and packed
the rest as he asked her to do. She then
took the packed money into the board room where the appellant was
sitting with Agliotti
and handed the bag to Agliotti, who pushed it
across the table towards the appellant. Points of difference between
Agliotti and
Muller relate to surrounding events that easily arise
and, as the trial judge remarked, are indicative of the absence of a
conspiracy
to falsely incriminate the appellant.
[63] The differences between them
pale further into insignificance when the next bit of corroboration
is considered. Unrelated to
the investigation against the appellant,
the shareholders of JCI instructed the firm of chartered accountants,
KPMG, to conduct
a forensic investigation into the Kebble’s
management of JCI. During this investigation the Spring Lights
account came under
the spotlight as it was the channel through which
the Kebbles allegedly channeled vast amounts of money to sometimes
undisclosed
and often unauthorized recipients. The DSO and
prosecuting authorities ultimately benefited from this investigation
in that it
identified several cash cheques, the stubs of which drew
attention because they could be tied to payments made to the
appellant.
All of these stubs contain an inscription that could be a
reference to the appellant, being ‘JS’, the initials of
the
appellant, ‘Chief’, being a shortened reference to
the appellant as chief of the police, and ‘COP’, being
an
abbreviation for the appellant as the chief of police.
[64] Amongst these cheques was
one, dated 20 December 2004, in respect of which the stub read ‘CASH
CoP’. On behalf
of the appellant there was a desperate attempt
to illustrate that ‘CoP’ could have referred to another
or other policeman.
There was no suggestion that it could have
referred to anything unrelated to a member of the police force.
Evidence was elicited
during cross-examination of a generous and kind
hearted Agliotti that financially assisted a policeman with the
surname Bezuidenhout
who had a car accident during which he wrecked
his car. Agliotti’s own version was that he assisted
Bezuidenhout ‘in
a small way because [he] felt sorry for them’.
R100 000 is hardly a small amount and it was never suggested that it
was.
[65] Flint, who wrote out most of
the cheques drawn on the Spring Lights account, made a statement that
the money from at least
two of the cheques was intended for
Bezuidenhout. During evidence he changed this evidence and explained
that he had since remembered
that the money that was paid to
Bezuidenhout was fetched by the latter at premises occupied by
Muller, Flint and Agliotti prior
to June 2004 and that the cheques
under discussion were dated after June 2004. He thus concluded that
the cheques could not have
been for Bezuidenhout.
[66] In isolation the evidence
about money paid to Bezuidenhout and Flint’s contradiction
about at least two of the cheques
having been for Bezuidenhout, could
have had a significant effect in favour of the appellant’s
defence. However, in the context
of all the other evidence, it does
not. The amount of the cheque goes way beyond generosity and kind
heartedness. Taken with the
evidence of Agliotti and Muller and the
further corroboration to be discussed, it is not reasonably possible
that the moneys went
to Bezuidenhout.
[67] Before mentioning further
corroboration in relation to this payment of R110 000, it is
convenient at this stage to dwell on
the meaning of the words written
on the cheque stubs. Much was made on behalf of the appellant of the
fact that Flint was the author
of most of the cheques and cheque
stubs, and he testified that he never suspected that the money was
meant for the appellant. Counsel
for the appellant argued that as the
author of the stubs were unable to say that the money was meant for
the appellant it cannot
be concluded that the words on the cheque
stubs referred to the appellant. This argument is fallacious. Flint
testified that he
wrote out cheques on Agliotti’s instructions.
He had no independent knowledge of what the money was intended for.
What he
wrote on the stubs was based on information from Agliotti and
was meant to be a cryptic reminder of what the money was for. Flint

was therefore not the author of the stubs in the usual sense of the
word. Although it was by his hand that the writing was made
on the
stubs, it was based on information from Agliotti. This is true in
relation to all the relevant stubs.
[68] Mr Dean Friedman from KPMG
was instructed, pursuant to his forensic investigation for JCI, to do
a forensic analysis of the
appellant’s finances. Amongst other
things, he found a significant change of trend in the appellant’s
bank account
during the period January 2005 until March 2005. During
January and February 2005 no cheque payments were made form the
appellant’s
bank account, unlike the months before and after
that time, when cheque payments were, on average, well in excess of
R10 000 per
month. For the period January until March 2005 no cash
withdrawals were made and credit card expenditure from January until
April
2005 dropped, on average, by several thousand Rand. The
appellant offered no explanation for this drop in the spending
patterns
from his bank account. It is hardly conceivable that the
appellant, faced with the dilemma just illustrated, was unable to
tender
an explanation if one, other than the incriminating one
proffered by the respondent, existed. I state this whilst not losing
sight
of the fact that the appellant testified that his wife ran the
household finances. Nothing was suggested that barred her from
testifying.
[69] An attempt was made on
behalf of the appellant to illustrate that Agliotti and Muller were
talking about different incidents
in relation to the December 2004
payment, as Muller was confused about the date of the event to which
she testified. Her recollection
was not crystal clear, but she
remembered that the incident occurred towards the end of a year that
Agliotti went to Mauritius.
Whilst giving evidence she recalled that
the incident occurred before the death of Kebble, who was murdered on
27 September 2005.
There is no merit in the contention that Agliotti
and Muller were not testifying about the exact same payment.
[70] The trial court correctly
concluded that sufficient corroboration existed to substantiate the
conclusion that the appellant,
beyond a reasonable doubt, was the
recipient of R110 000 from Agliotti of which R100 000 was drawn
with cheque 0266 from the
Spring Lights account. The further findings
by the trial court followed the same pattern. Against the backdrop of
numerous payments
having occurred, supported by a particular cash
cheque, the stub of which contained some reference to the appellant
and the general
corroboration referred to above and detailed with
care in the judgment by the trial court, the appellant was convicted
of receiving
three further payments. The first two are evidenced by
cheques; the first being cheque 0127, the stub of which reflected the
inscription
‘CASH JSGA’ made out on 14 June 2004 for an
amount of R10 000; the second being cheque 0355 dated 28 September
2005
made out in the amount of R30 000, the cheque stub reflecting
‘CASH Chief’. Agliotti interpreted the ‘JSGA’

to refer to ‘Jackie Selebi Glen Agliotti’.
[71] Insofar as the general
corroboration relied on by the trial court is concerned, I am of the
view that the trial court, in applying
the rules of caution and
seeking corroboration, was benevolent to the appellant and preferred
to refrain from convicting the appellant
in relation to a specific
payment when the faintest doubt was raised. Thus the appellant was
not convicted in relation to four
more cheques that reflected
inscriptions that could be interpreted as references to the
appellant.
[72] In relation to cheque 0355
particularly strong corroboration was found which also serves to
strengthen the general corroboration.
Agliotti testified that the day
after Brett Kebble was murdered, 28 September 2005, whilst on his way
to the mortuary to identify
Kebble’s remains, he received a
telephone call from the appellant, who asked him for money. He
specifically remembered the
telephone call because of the unusual
circumstances he found himself in when he received the call. During
cross-examination it
was denied that the appellant made this call.
Objective evidence of telephone records was thereafter found and
introduced that
indicated that the appellant did indeed make a phone
call to Agliotti on that day. The cheque is dated the same day. Its
stub contains
the words ‘CASH Chief’. Agliotti testified
that he used to refer to the appellant, and nobody else, as ‘Chief’.
[73] The only version, other than
a denial by the appellant, that was argued in answer, was that the
R30 000, represented by this
cheque, was used by Agliotti to make a
customs payment for the release of a container that later turned out
to have contained narcotics.
The argument is not supported by the
facts and is rather opportunistic. It confuses Agliotti’s
evidence of the payment for
the container and ignores the inscription
on the cheque stub and the objective evidence of the telephone
conversation. In fact,
it constitutes a random connection of two
amounts of R30 000 that could not be connected on the evidence.
[74] Shortly after this payment,
on 16 October 2005, the appellant took the unusual step of personally
calling at a clothing store,
Gray’s, in Sandton City, where he
and Agliotti regularly shopped together, and made a cash payment of
R25 000 on this account
which at that stage stood at R56 430. An
amount of R25 000 was not withdrawn from his account for this
purpose. The appellant having
been in possession of such a large,
otherwise unaccounted sum of cash, provides a measure of
corroboration for the respondent’s
version that Agliotti had
paid him R30 000 in cash.
[75] The third additional payment
the court a quo found had been made was an amount of $30 000 Agliotti
said he had made to the
appellant on 23 May 2005 at the O R Tambo
airport shortly before the appellant departed on a trip to Cyprus.
The reason for this
payment further paints the picture of the nature
of the relationship between the appellant and Agliotti and adds to
the general
corroboration.
[76] Rautenbach desired to return
to South Africa, but due to the warrant that had been issued for his
arrest he did not feel free
to do so. He serendipitously met with
Agliotti in Zimbabwe and learnt about the relationship between
Agliotti and the appellant.
He requested Agliotti to attempt to
persuade the appellant to pay attention to his case with the ultimate
view of facilitating
his return to South Africa without running the
risk of being arrested. Agliotti was keen to assist and charge a fee
for his efforts.
On Agliotti’s insistence the appellant met
Tidmarsh, Rautenbach’s attorney, in his hotel room in Sandton
on 19 April
2005. They discussed Rautenbach’s dilemma. The
appellant testified that by doing so he gave Tidmarsh the opportunity
they
sought, namely to have Rautenbach’s case listened to by
‘higher authority’. During this meeting the appellant,
on
his own version, gave Tidmarsh information that assisted him to
respond to a letter to Rautenbach from Ngcuka. This information

included that Ngcuka was suspected of ‘abusing his office’
and was being used by British Intelligence for their purposes.
[77] Not long after this meeting,
on 22 April 2005, Agliotti flew to Lumbumbashi in the Democratic
Republic of Congo, met Rautenbach
at the airport who handed him $100
000 for arranging the meeting with the appellant. Rautenbach’s
evidence in this regard
was not challenged. He was accepted by the
trial court as a reliable witness and that finding is also not
challenged in this court.
During this time, somewhere during May or
June 2005, the appellant had occasion to share a flight with Pikoli
to the Eastern Cape
on official duties. According to Pikoli, when
they disembarked, the appellant asked him why his department does not
drop the charges
against Rautenbach. He responded by asking why they
would do that and the appellant replied that he was in possession of
a letter
that could embarrass Ngcuka, a previous National Director of
Public Prosecutions (NDPP), and Pikoli’s office. According to

Pikoli he dismissed this communication as he believed it was not a
matter the appellant should have been involved in. Pikoli’s

evidence was accepted by the trial court and that finding is not
attacked in this court.
[78] I need to interrupt myself
at this stage to state that both the appellant and Agliotti
testified, on the strength of a letter
written by Ngcuka, who was
then the NDPP, to Rautenbach, that Ngcuka had tried to bribe
Rautenbach. Rautenbach was not of that
view. The letter does not
illustrate that intention either and when the appellant was driven to
concede that fact during cross-examination,
he said that Agliotti
informed him that Rautenbach disclosed to him that Ngcuka had tried
to bribe him.
[79] Agliotti testified that on
23 May 2005, shortly after he had received $100 000 from Rautenbach,
he met the appellant at the
O R Tambo airport and handed him an
amount of US Dollars. The appellant denied this. On that day the
appellant left the country
to attend an Interpol meeting in Cyprus.
He was advanced €700 by the South African Police Service (SAPS)
for the trip. Upon
his return, he exchanged $2 500 into Rand at the
airport. He tried to explain the inconsistency by stating that his
trip was funded
by Interpol, therefore he had additional foreign
currency. This was conclusively illustrated during his evidence not
to have been
the case. His counsel ventured another explanation. That
from his many travels abroad the appellant accumulated some foreign
currency.
Even though there is some support in the appellant’s
evidence that he held some foreign currency in his safe at home, the

insurmountable difficulty with this submission is that it was not the
explanation offered by the appellant.
[80] In addition to payments, the
trial court also found that Agliotti bought several items of Fubu
clothing for the appellant’s
two sons. This finding was based
on the evidence of Muller that corroborated Agliotti’s version.
She testified of an occasion
in Sandton City shopping centre when the
appellant, his wife and sons, met with Agliotti and Muller at the
clothing store that
sells the Fubu brand of clothing and Agliotti
took the appellant’s sons and treated them to several choices
of items of clothing.
It is hardly imaginable that Muller would have
dreamt up this incident in the detail that she recounted it. As
Muller was correctly
found to have been a reliable witness, her
evidence was sufficient to sustain the conviction in this regard.
[81] The trial court made no
error in reaching the conclusion that it did about benefits in the
form of payments to the appellant
and clothing for his sons. If
anything, the trial court was benevolent towards the appellant in its
approach of the evidence.
[82] The trial court found that
the respondent proved, beyond a reasonable doubt, that quid pro quo
of four kinds were given by
the appellant for gratification received
from Agliotti. Three were in the nature of information shared and the
fourth in the nature
of his attendance at various dinners and
meetings at Agility’s insistence.
[83] Agliotti gave evidence that
during approximately July or August 2006 the appellant telephoned him
and asked to see him urgently.
When they met he showed Agliotti a
document consisting of two pages, it displayed the United Kingdom
(UK) coat of arms, it referred
to ‘Her Majesty’s Customs’
and it correctly recorded some of Agliotti’s travels to the UK
and with whom
he met whilst there. The real value of disclosing this
document to Agliotti is that it conveyed that the UK were monitoring
his
movements as they suspected him of drug trafficking. Agliotti
referred to this document in his prison notes as ‘Report . .
.
. H.M.S. customs’.
[84] Standing alone, this
evidence by Agliotti is not indicative of much and as the trial court
found him to be an unreliable witness,
would have been meaningless if
not corroborated. The nature of corroboration that was proved by the
respondent, however, was devastating
for the appellant’s case.
What is certain is, if such a document existed, it was definitely
shown to Agliotti, because there
was no other way that he could have
had the specific knowledge of its content that he had testified
about.
[85] Such a document was
introduced into evidence. It was referred to during the trial as the
‘UK Report’. It is a letter,
addressed to Mark Hankel
(Hankel), Director of Crime Intelligence of the SAPS from the British
High Commission on a letterhead
bearing the following inscription
under the UK coat of arms: ‘HM Customs and Excise’ and
underneath that: ‘Law
Enforcement’. It was dated 3 August
2004. Hankel testified on behalf of the respondent. He received this
document from the
UK Customs authorities. At the time, his department
was conducting an investigation into drug related activities of
several people,
Agliotti having been one of them. They called this
investigation ‘Operation Chaser’. This letter was kept in
the file
pertaining to Operation Chaser. When he was approached by
the prosecuting authority about the existence of such a letter, he
discovered
that the file had been booked out by a Captain Thema
(Thema) of the SAPS on 21 April 2006 and was never returned.
[86] During his evidence the
appellant conceded that subsequent to Hankel’s evidence, he
consulted with Thema, whilst knowing
that the latter was a state
witness and he was not entitled to consult with him. Despite the
evidence and the appellant’s
consultation with Thema, he was
never called as a witness in the appellant’s case. There was no
answer to this evidence,
and the appellant had none. The trial court
made no mistake in its finding against the appellant in this regard.
[87] In his prison notes Agliotti
referred to a ‘NIA’ report that was shown to him by the
appellant. He testified that
the appellant had a thick document which
he opened and showed two pages of to Agliotti. Two lines of the
writing in it were underlined
and that related to an allegation by
one Jurgen Kögl (Kögl) that the Kebbles were paying the
appellant. The appellant
asked Agliotti to find out about Kögl
and told him that the relevant document was an intelligence report
destined for the
President of South Africa.
[88] Such a document was
introduced into evidence. It is called a National Intelligence
Estimate (NIE report), an annual document
prepared by the National
Intelligence Coordinating Committee (NICOC) for the purpose of
providing the South African Government
with an assessment of the key
issues of security concerns to the country on a national and
international level. The NIE report
indeed contains the information
that Agliotti testified about. The appellant’s response to this
evidence was most unusual.
He denied that he showed the particular
NIE report to Agliotti but conceded that he showed him some document
concerning ‘information
pedlars’ which might have
contained a reference to Kögl. During the course of his evidence
the appellant produced a
document which he said was similar to the
one that he showed to Agliotti. The document was never put to
Agliotti during the latter’s
evidence. On the face of it, it
was a classified document, which would lead to the same conclusion
than the one drawn by the trial
court in relation to the NIE report.
The appellant then testified that he had the actual document that he
had shown to Agliotti
at home. That document, he said, he
declassified to enable him to legitimately show it to Agliotti. When
he brought the document
to court, it was apparent that it had not
been declassified, and during further cross-examination it was
convincingly illustrated
that the document had been fabricated after
Agliotti had given his evidence.
[89] The trial court dealt
extensively in its judgment with this evidence as the fourth of the
appellant’s ‘big lies’
and correctly concluded that
the appellant did show the ‘NIE report’ to Agliotti.
[90] The last of the documents
that the trial court found the appellant showed to Agliotti, is an
eight page document consisting
of a statement attached to an e-mail.
According to Agliotti the appellant telephoned him and arranged to
meet him urgently in the
parking area of Makro in Woodmead. There he
handed the document to Agliottti with the communication that the
document could be
used to discredit the DSO. The details of the
document and why it may have provided ground to discredit the DSO is
irrelevant for
current purposes. Agliotti handed the document to his
attorney. The document included information about an investigation in
which
Agliotti was implicated.
[91] The composition of this
document was not challenged on behalf of the appellant during
Agliotti’s evidence. During his
own evidence, however, he
vacillated between whether he had ever seen the entire eight
page-document or only part of it, which
part he had seen and handed
over to Agliotti and the reason why he gave it to Agliotti. The trial
court correctly found that the
respondent had proven that the
appellant handed the full document to Agliotti and that the appellant
was dishonest in relation
thereto. This was dealt with by the trial
court as the sixth of the appellant’s ‘big lies’.
[92] Not much
need to be said about the trial court’s findings about the
meetings and dinners that the appellant attended
with Agliotti, other
than that the finding is not to be faulted. I do make reference to
some of the meetings and dinners in a discussion
that follows on the
nature of the relationship between the appellant and Agliotti. Before
I proceed to that discussion it is important
to state that the
mendacity of the appellant went directly to the essence of vital
aspects of the case against him and greatly
reduced the risk of
accepting the evidence against him.
14
The palpable
dishonesty apparent from the appellant’s testimony leaves one
aghast. It reveals, without any doubt, a guilty
state of mind.
[93] The trial court made the
following finding in relation to the requirements of s 4 of the
Prevention and Combating of Corrupt
Activities Act 12 of 2004 (PCCA
Act):
‘
Whilst
the act criminalises the conduct of both the corruptor and the
corruptee, it clearly and expressly, does not require the
existence
of an agreement between them.’
Towards the end of the judgment
the trial court concluded as follows on the evidence:
‘
As
indicated above there is no evidence of an agreement between the
accused and Agliotti for benefits to be given to Agliotti in
return
for payments. On the evidence it is clear that such an agreement or
understanding must have existed. It did not have to
be expressly
concluded. At the very least it came into existence over a period of
time. The accused must have known the adage that
there is no such
thing as a free dinner.’
[94] These findings were attacked
by the appellant in this Court. In the heads of argument delivered on
behalf of the appellant
the following submission is made:
‘
We
submit that there can be no doubt that PCCA requires as a very basic
requirement that any gratification accepted or agreed to
be accepted
by an accused person must specifically relate to some understanding
between the person giving the gratification and
the person receiving
the gratification that he will act or omit to act in a specific
agreed manner and/or influence another person
to so act.’
[95] It is further submitted on
behalf of the appellant that although the trial court was correct in
finding that there was no evidence
of an agreement between the
appellant and Agliotti, the trial court erred in inferring that ‘it
was clear that such an agreement
or understanding must have existed’.
It was further contended that the finding ‘is of course
directly contrary to the
allegations in the charge sheet . . . and
also contrary to the evidence given by the State witnesses’.
[96] The factual findings and
conviction by the trial court on the basis set out above, consist of
an acceptance of a gratification
on the one hand and the giving of a
quid pro quo by the appellant on the other hand, on the basis of an
inferred agreement. As
such the findings fulfils the requirements of
s 4(1)
(a)
(i)
(bb)
:
‘
Any
public officer who . . . accepts . . . any gratification from any
other person . . . in order to act, . . . in a manner that
amounts to
the . . . misuse or selling of information or material acquired in
the course of the, exercise, carrying out or performance
of any
powers, duties or functions arising out of a constitutional,
statutory, contractual or any other legal obligation; . . .
is guilty
of the offence of corrupt activities relating to public officers.’
[97] Section 4, in my view, does
not require an agreement between the corruptor and the corruptee, nor
does it require a quid pro
quo from the corruptee. It must be plainly
understood that the conviction in this case on the evidence that
established an agreement
and the giving of a quid pro quo, is not the
low water mark of the section.
[98] On the view that I take of s
4, the trial court would have been justified to convict the appellant
even without a finding that
he had provided a quid pro quo.
Section 4 (1)(
a
)(ii)
reads:
‘
Any
public officer who . . . accepts . . . any gratification from any
other person . . . in order to act, . . . in a manner that
amounts to
–
(
aa
)
the abuse of a position of authority;
(
bb
)
a breach of trust; or
(
cc
)
the violation of a legal duty or a set of rules;
is guilty of the
offence of corrupt activities relating to public officers.’
[99] Section 25 of the PCCA Act
supports the wide interpretation of s 4. It provides:
‘
Whenever
an accused person is charged with an offence under Part 1, 2, 3 or 4,
or section 20 or 21 (in so far as it relates to the
aforementioned
offences) of Chapter 2, it is not a valid defence for that accused
person to contend that he or she–
(
a
)
did not have the power, right or opportunity to perform or not to
perform the act in relation to which the gratification was given,

accepted or offered;
(b
)
accepted or agreed or offered to accept, or gave or agreed or offered
to give the gratification without intending to perform or
not to
perform the act in relation to which the gratification was given,
accepted or offered; or
(c
)
failed to perform or not to perform the act in relation to which the
gratification was given, accepted or offered.’
[100] In the charge sheet the
respondent relied on an allegation that the appellant and Agliotti
had conducted a ‘generally
corrupt relationship’. An
investigation of the nature of their relationship serves to
illustrate that the requirements of
s 4 were satisfied on a
narrower basis as well.
[101] I turn first to an
investigation of the appellant’s behaviour in relation to
Agliotti on either common cause or uncontested
facts. The appellant’s
office was situated in Pretoria and that of Agliotti in Midrand. The
appellate went to Agliotti’s
office regularly, approximately
twice a month, during office hours and often in full uniform. They
regularly met in shopping centres,
during office hours, to have
coffee and to shop together for exclusive clothing, for which they
both had a passion. They communicated
regularly via telephone. The
evidence showed that during the period 1 July 2004 until 20 August
2004, a mere seven weeks, there
were 57 instances of telephonic
contact between them, 41 of which were initiated by Agliotti and 16
thereof were made by the appellant.
Despite their closeness the
appellant and Agliotti never visited each other’s homes and
included their families in their
interaction only on rare and
isolated occasions.
[102] The appellant met with
Tidmarsh. There was a stark contrast between the reasons for the
meeting put to state witnesses and
testified to by the appellant.
During his evidence he insisted that the meeting took place on his
insistence and was about official
police business. He went to listen
to a complaint from Tidmarsh about the manner in which the office of
the NDPP was treating Rautenbach
and to verify Agliotti’s
revelation to him that Ngcuka attempted to bribe Rautenbach.
Curiously though, they met at Tidmarsh’s
hotel rather than at
the appellant’s office and he took Agliotti with him. The
evidence ultimately revealed that neither
Rautenbach nor Tidmarsh was
of the view that Ngcuka tried to extract a bribe from Rautenbach.
[103] The appellant allowed and
accommodated behaviour from Agliotti that strikes as peculiar from
the National Commissioner of
Police. Agliotti telephoned him when he
was stopped at the door of an aircraft at O R Tambo Airport and
questioned by members of
the SAPS. Again, when Agliotti was searched
at Heathrow Airport he telephoned the appellant with the news.
Agliotti also telephoned
the appellant from the scene of a
housebreaking and after speaking to the appellant handed the
telephone to the police officer
on the scene who was busy performing
his duties. The appellant then instructed him to do his job well as
the appellant was his
friend.
[104] The appellant met with the
Kebbles despite the fact that he knew, since August 2003, that
Agliotti received an amount of more
than R12 million from the Kebbles
for having the appellant ‘on board’. During this dinner
the appellant discussed with
Brett Kebble the details of his father’s
arrest at the O R Tambo Airport by members of the SAPS and did so in
the presence
of Agliotti. The appellant blatantly lied about the
motivation for and content of the dinner conversation with the
Kebbles in that
he tendered several versions in this regard. One of
those versions was that the dinners with the Kebbles only contained
convivial
conversation.
[105] The appellant also met with
Nassif on Agliotti’s request, an arrangement for the purpose of
considering using Nassif’s
security company to address certain
criminal acts. Similarly he met with one Jumean to listen to a
complaint about a police reservist,
Brad Wood. Several other such
meetings were arranged by Agliotti and attended by the appellant. At
best for the appellant, it shows
a willingness to be involved in
issues that had nothing to do with essential SAPS business, but only
with minor issues related
thereto, not deserving of the concern or
attention of the National Commissioner of Police.
[106] These facts paint a picture
neither purely of friendship nor of a professional relationship, but
of an undesirable confusion
of the two. What stands out is that the
appellant indulged Agliotti in many ways. These indulgences should be
seen against the
backdrop of the appellant’s own knowledge
about Agliotti.
[107] He was fully aware that
Agliotti flaunted his association with the appellant. The appellant
testified that Agliotti had a
lot of information about crime (he
described him as an ‘encyclopaedia’ of criminal events)
that he shared with him.
It is an inevitable inference that one has
to be close to crime to have information about it, but nevertheless,
the appellant continued
his association with Agliotti. During 2003
the South African Revenue Service (SARS) informed the appellant that
it was investigating
Agliotti in relation to contraban, but the
appellant continued to closely associate with Agliotti. The appellant
tried to justify
his continued involvement with Agliotti by denying
that he ever had any concrete evidence about Agliotti’s
involvement in
crime. However, he chose to never question or
investigate the rumours about Agliotti or why he was such a rich
source of information
about crime.
[108] The appellant could contact
Agliotti without any difficulty when one of the senior forensic
investigators of the Special Investigation
Unit of SAPS, Roeland, was
unable to do so. After Brett Kebble was murdered, Roeland’s
investigations revealed that several
mobile telephones registered to
Agliotti had been active, the day prior to the murder, on the scene
of the murder. When she and
her staff tried to make contact with
Agliotti on these numbers after the murder, they were unsuccessful
because the numbers were
inactive. However, when they briefed the
appellant about this in an official meeting, the appellant dialled a
number in their presence
and spoke to Agliotti. When he was
requested, after the conversation, to divulge the number that he had
dialled, he ignored the
request. Initially, during the trial, he
denied that this incident had happened although he subsequently
conceded that it had.
He then tried to brush the incident off by
saying that the members of the SAPS had all the relevant means to
trace and make contact
with Agliotti. This evidence ties in with that
of Agliotti when he indicated that after the start of the so-called
media campaign
against him and the appellant, during 2006, he
(Agliotti) changed his telephone to a so-called ‘pay-as-you-go’
to escape
detection and media attention.
[109] I now turn to set out the
appellant’s knowledge in relation to Agliotti. Since August
2003 he had clear evidence that
Agliotti abused their relationship
and received a vast amount of money from the Kebbles to retain his
closeness to the appellant.
Also during 2003 he learned of Operation
Chaser, a criminal investigation into international drug related
crime by the Special
Operations Intelligence Centre of the SAPS in
which Agliotti, albeit not the main suspect, also featured. The
appellant, during
the course of 2003, asked Agliotti whether he was
involved in crime. He explained that he ‘[w]anted to make sure
he is not
involved in any crime if he is associated with me’.
The appellant clearly harboured justified suspicions that Agliotti
was
involved in criminal activity, a perfectly reasonable suspicion
considering his knowledge about Agliotti, and also asked senior

police officials about him. According to the appellant he never
received an answer to his request, but he also never followed up
his
request. The appellant called Agliotti a ‘hustler’ and
said that if a hustler like Agliotti offered him money,
he would
think there is something behind it, that he is trying to buy his (the
appellant’s) favour.
[110] The above summary shows
that the nature of the relationship between the appellant and
Agliotti, based on common cause facts,
was no ordinary relationship.
One does not expect the National Commissioner of Police to take his
friend along on police business;
to take his friend and informer
along to the very meeting where the verification of the informer’s
information is to take
place; to meet his friend to shop together
during office hours; to favour his friend by attending to minor
complaints for which
structures exist to be dealt with; and to
divulge information regarding police operations to his friend’s
friends. If the
relationship was so close to have made these
occurrences ordinary, one would have expected it to spill over to the
families of
the appellant and Agliotti, which did not happen.
[111] How did the appellant
explain this unusual relationship? It was repeatedly put to state
witnesses on his behalf that he had
an innocent friendship with
Agliotti. I have already illustrated that to have been highly
improbable, to the point of being unbelievable.
During his own
evidence, however, the appellant dramatically changed this version
and described the relationship as one between
informer and handler.
This explanation is equally inherently improbable. Their relationship
was a public one. Agliotti was previously,
from the beginning of 2002
for a period of one year, registered as a police informer and had an
official handler, not the appellant.
He lost that status within a
year and was deregistered as an informer. The appellant’s
mendacity in this regard, dealt with
extensively by the trial court,
is yet another indication that the relationship between them was
extraordinary, not one of friendship,
nor one between informer and
handler.
[112] The only
reasonable inference to be drawn from the nature of their
relationship is that the appellant felt beholden to Agliotii.

Agliotti’s generosity did not stop at the appellant’s
door, he used the R12 million that he received from the Kebbles
for
the purpose that it was given. The focus in
S
v Shaik & others
[2006] ZASCA 105
;
2007
(1) SA 240
(SCA) was on the other side of the coin to the present,
but, bearing the obvious factual differences in mind, the following
passage
from the trial court’s judgment highlights the obvious
inferences to be drawn:
15
‘
If
Zuma could not repay money, how else could he do so than by providing
the help of his name and political office as and when it
was asked,
particularly in the field of government contracted work, which is
what Shaik was hoping to benefit from. And Shaik must
have foreseen
and, by inference, did foresee that if he made these payments, Zuma
would respond in that way. . . .
he also realised the
possible advantages to his business interests of providing the means
to retain Zuma’s goodwill by helping
him to support a lifestyle
beyond what he could afford on his Minister’s remuneration.’
In my view, the appellant must
have realised that Agliotti’s generosity and the payments he
received from him created a dynamic,
whereby he, in his post as head
of the nation’s police service, would be indebted to him and
would have to remain willing
to do him favours.
[113] This
leads to the conclusion that the appellant, on his own version,
abused his position of authority and breached the trust
placed in the
position that he held in contravention of s 4(1)
(a)
(ii).
Strictly speaking, this finding obviates the need to investigate
whether the appellant gave any quid pro quo for the payments
that he
received. But, as I have already pointed out, he did.
[114] For these reasons I agree
that the appeal should be dismissed.
__________________
S SNYDERS
Judge of Appeal
APPEARANCES
For Appellant: JG Cilliers SC
(with him SJ Coetzee & J Motepe)
Instructed by:
Geyser & Coetzee Attorneys,
c/o Aucamp & Cronje Attorneys, Johannesburg
Hill, McHardy & Herbst Inc,
Bloemfontein
For Respondent: GC Nel (with him
A Johnson)
Instructed by:
The National Director for Public
Prosecutions, Johannesburg
The National Director for Public
Prosecutions, Bloemfontein
1
C
R Snyman
Criminal Law
5ed
(2008) at 412.
2
Snyman
at 418
.
3
See
section 1 of the PCCA Act.
4
Snyman
at 419.
5
Snyman
at 419.
6
Snyman
at 419.
7
It
must be remembered that Agliotti was a witness in terms of
s 204
of
the
Criminal Procedure Act 51 of 1977
who had been warned as such by
the trial court before giving evidence.
Section 204
requires a
witness to answer all questions put to him or her truthfully and
honestly and, if necessary incriminates himself.
If the court is
satisfied that a witness has complied with this standard the court
will grant him or her immunity from prosecution.
8
Dianne
Muller was a member of a close corporation known as Monster
Marketing CC trading as Maverick. In order to attract tender-related

work from the Government, Maverick made an agreement with JCI
pursuant to which Maverick Masupatsela (Pty) Ltd was formed and

started trading as such in 2005. After Brett Kebble’s death in
September of that year the agreement was cancelled, whereafter

business was carried on under the name Maverick Experience
Exhilarator (Pty) Ltd.
9
S
v Shaik & others
[2006] ZASCA 105
;
2007 (1) SA 240
para 87.
10
S
v Bester
1990 (2) SACR 325
(A) at
328d;
S v Mahlangu & another
2011
(2) SACR 164
(SCA) para 21.
11
Rautenbach
had a legal issue with SARS and was out of the country in Zimbabwe.
He was afraid of returning to the country for fear
of being
arrested. Agliotti assured him that because of his connection with
the appellant he could get Rautenbach’s problem
to go away.
For his services he demanded a fee of 100 000 USD. It is from this
amount that the State suggested that Agliotti
was able to pay the
appellant in US dollars.
12
J
Burchell
Principles of Criminal Law
3ed (2005) at 893.
13
R
v Dhlumayo
1948 (2) SA 677(A).
14
Corfield
v Hodgson
[1966] 2 All ER 205
;
S v Hlapezula & others
1965 (4) SA 439
(A) at 440F-G;
De Vries & others v S
(130/11)
[2011] ZASCA 162
(28 September 2011).
15
At
260A-D.