Embattled police National Commissioner Jackie Selebi got a major filip this week when counsel for the Ginwala inquiry slammed plea bargains with the Scorpions’ potential star witnesses against him as ”unheard of” in South African criminal law.
Suspended National Prosecuting Authority (NPA) boss Vusi Pikoli and Gauteng Scorpions head Gerrie Nel were grilled by the government’s counsel, Seth Nthai, on the NPA’s decision to enter into plea agreements with Glenn Agliotti and Clinton Nassif.
Agliotti is accused of helping to orchestrate the murder of Brett Kebble and both men have admitted involvement in the smuggling of R240-million-worth of hashish.
Lawyers who observed the proceedings but asked not to be named for professional reasons told the Mail & Guardian that Nthai’s attack on the Agliotti and Nassif plea bargains might have been a dry run for the Selebi trial, due to start in April next year.
Selebi’s counsel were in and out of the Ginwala proceedings this week and police representatives were seen in regular communication with the state’s legal team.
It is expected that Selebi will make pre-trial applications in a bid to stop the charges against him from being further pursued and Ginwala’s ruling on the matter could prove crucial for Selebi in his attempts to discredit the witnesses lined up against him.
Pikoli and Nel, however, denied putting dangerous criminals back on the street and said Agliotti and Nassif would be used to bring down even bigger fish.
These, according to the NPA, are alleged hashish kingpin Stefanos Paparas and Selebi.
The Ginwala inquiry’s senior counsel, Ishmael Semenya, questioned Nel intensively on the plea bargains, asking what would happen if Agliotti and Nassif did not testify truthfully in the Paparas or Selebi cases.
Plea bargains were a new condition in the criminal justice system and made the process ”very complex”, Semenya said. Nel agreed that the procedure was ”complicated”, but said it was in line with any other breach of suspended conditions.
”The magistrate will have to apply his mind if somebody breaches conditions of suspension. It’s more difficult, I agree, but not impossible.”
Semenya replied: ”I’m not saying it’s impossible. I’m saying it’s unheard of that you would have to prosecute somebody in front of a neutral magistrate to determine whether or not the evidence he’s given in another case has been given frankly and honestly without processes of your ordinary perjury trials.”
According to Nel, the approach was ”extraordinary, but I think, possible”.
The inquiry sat behind closed doors on Wednesday to hear evidence on section 204 negotiations between Nassif and the NPA that would indemnify him from criminal activity if he testifies honestly in matters that might incriminate him.
Agliotti, who has admitted to ”assisting” mining magnet Brett Kebble in his ”suicide”, is no longer portrayed by the NPA as the ”landlord” in the Scorpions’ Operations Bad Guys, but merely as a transporter of drugs for Paparas.
Paparas, his father Dimitrio and Stanley Poonin are due to go on trial later this year.
”It was very important for us to get all the role-players convicted in the Paparas matter. These two [Agliotti and Nassif] pleaded guilty and I thought that they were just sentences, taking into account the roles they played in the syndicate,” Nel testified.
Both men received 10-year sentences, suspended for five years, and hefty fines in exchange for pleading guilty at the end of last year.
They also promised to testify ”frankly and honestly” in other relevant matters. Agliotti admitted transported hashish and Nassif warehoused the drugs.
When President Thabo Mbeki suspended Pikoli in September last year, one of the reasons he included in his letter of suspension was plea bargains entered into by Pikoli that could place national security at risk. This was a clear reference to the Agliotti and Nassif deals.
Nthai criticised Pikoli and Nel for not adhering to minimum sentences for drug dealing and for including in the sentencing agreements that Agliotti and Nassif are willing to testify in any other relevant matters.
The government’s case is that this was an underhanded approach by the NPA to win over Agliotti and Nassif for their case against Selebi.
Pikoli responded that the SAPS had been investigating Agliotti and Nassif for years and hadn’t managed to convict either of them. It was only when the Scorpions took over the investigation that they pleaded guilty.
The inquiry was adjourned until August 1, when both parties will deliver closing arguments.
Prosecutors told to move
Meanwhile, prosecutors at the Johannesburg High Court were ”shocked” this week to learn that they must vacate their offices by the end of September.
The handling of the order to move is seen by some court insiders as worsening tensions between prosecutors and the Justice Department over the prosecutors’ perceived support for their suspended national director, Vusi Pikoli.
Witwatersrand director of public prosecutions (DPP) Charin de Beer told the Mail & Guardian she was informed by the department last Friday that she and her team must be out of the court building in 12 weeks.
De Beer this week had emergency meetings with officials from the department to secure new office space that is not too far from the court. Currently the almost 150 prosecutors occupy three floors in the high court building.
According to De Beer, talks of relocation are not new but the National Prosecuting Authority was never told that it would happen as early as October this year.
”I am shocked at the way this was handled,” De Beer said. The move will affect 211 staff members and moving the prosecutors’ library could disrupt their work.
The Justice Department maintains the move has been on the cards ”for a long time”.
”Of course … the decision and plan involved the NPA from the beginning. In any case the DPP will move out of the court only once the alternative accommodation is ready and the relocation will be properly coordinated to ensure minimum disruption,” Justice Department spokesperson Zolile Nqayi told the M&G this week.
However, he disagreed with De Beer about where the prosecutors would be moved. According to Nqayi they will go to Innes Chambers, across the road from the court, which is owned by the NPA.
But, said De Beer, the NPA is still negotiating with First National Bank, which currently occupies Innes Chambers. She and department officials are now in discussions with the owners of Inner Court, an office building down the road from the court.
”The discussions have been fruitful and I am grateful to the department for what has happened this week,” De Beer said. Safety around prosecutors will have to be beefed up because they will no longer be based in the court building.
”We will definitely have to put more security in place because prosecutors will have to walk to court,” De Beer said.
According to Nqayi, the extra floors in the court building will be used to house judges’ chambers and courtrooms.