Spare a thought for the prosecutors of Roger Kebble, who had their suspect freed by court after 26 months’ preparation but before they could even mount a case.
An investigator’s affidavit gives a taste of the uphill battle the state faced.
The 62 fraud charges against the mining magnate were thrown out of Johannesburg Regional Court on Wednesday by Magistrate Vivien Hawkins, who agreed with the defence that Kebble’s constitutional right to a speedy trial had been infringed by repeated postponements since his November 2002 arrest.
Kebble was alleged not to have declared to Durban Roodepoort Deep (DRD), which he earlier chaired, that fees it paid for labour services to struggle sports hero Ronnie Watson were routed through his own company, Skilled Labour Brokers, and that he retained a substantial portion for himself.
Hawkins found that the delay in bringing Kebble to trial had led to ”substantial prejudice”. He ordered that the state should not reinstate the prosecution without written permission from the national director of public prosecutions — a warning not to reopen lightly.
The state had requested another postponement, this time to investigate new evidence which senior prosecutor Barry Roux told the court the state had a duty to evaluate.
On the face of it this evidence, a document reflecting interest payments by Kebble to Watson, helps clear the mining magnate, as it suggests the R2,33-million he allegedly pocketed was a loan.
But the state had its doubts about the document’s authenticity. Roux told the court that this document, handed to the state in December only, ”could be very good for the accused, [but] it could also be very bad for the accused”. A forensic probe was imperative.
Defence counsel Altus Joubert complained about the state’s allegedly cavalier attitude, saying even Kebble’s widely publicised arrest was ”an abuse”. He said Kebble — then 63 — could simply have been summonsed to court, and that in such a complicated case there would have been good reason to investigate first, then charge.
Out of court, Kebble and his spin doctors have claimed the prosecution stemmed from a boardroom dispute with Kebble’s successor at DRD, Mark Wellesley-Wood, and was a malicious attempt to discredit him in the business world. Both DRD and Wellesley-Wood deny this.
Magistrate Hawkins’s decision to strike the case from the roll was not unexpected — even Roux conceded that the delays had been ”horrible to
the accused”.
But Roux and his co-prosecutor, Sandra Maat, may take some solace from the fact that Kebble’s defence team seems at fault for at least some of the hold-ups.
Roux told the court that delays resulted from the highly unusual insistence at one stage of Kebble’s attorney, Lourens van Staden, that he be present when the state interviewed certain witnesses. The state would not countenance this and a stalemate resulted.
A January 2004 affidavit by investigating officer Andries Vorster, part of the court file, fleshes this out.
Vorster stated, among other things, that in October 2003 the state wanted to take statements from a Mr Vine, who had been the auditor of Kebble’s Skilled Labour Brokers, and from a Mrs Kelly, who had been a bookkeeper at Skilled.
Vorster was contacted by Van Staden, who said he represented both and later insisted that he be present during the state’s consultations with the witnesses. It is understood that the state has still not been able to gain access to Kelly.
During the same period the state wanted to obtain statements from a number of DRD directors or former directors, and from one Bets Pretorius, who had been a DRD finance division employee thought to have been involved in issuing the payments to Skilled.
Even though Kebble had been prohibited in his bail conditions from communicating with DRD directors or employees, Van Staden also emerged as the representative of Pretorius and one of the DRD directors the state wanted to interview, Charles Mostert.
In December 2003, after the state had refused Van Staden’s insistence on being present at witness interviews, the latter launched court action to have Kebble’s bail conditions relaxed so that the mining boss and his lawyers could have access to 11 potential witnesses including Mostert, Kelly and Pretorius.
Roux said in court that the stalemate was resolved only in June 2004 when Van Staden’s court application and his insistence on representing potential witnesses was dropped.
Van Staden this week acknowleged the impasse had caused delays, but said his actions were justified as the witnesses had been Kebble witnesses in the first place. ”We approached them first to give evidence in support of our defence and they agreed to do so. They include, for example, my employees at Tabacks, my law firm, and other professional advisors and business colleages.
”It was certainly not a delaying tactic; these people wanted me to be their lawyer, as is their right, and I am perfectly entitled to represent them.”