If Clinton Nassif is all the state has to nail Glenn Agliotti for the murder of mining magnate Brett Kebble, they’re in trouble.
The former security boss for the Kebble family’s companies was cross-examined for six days during the trial and with each passing day Agliotti’s defence counsel, Laurance Hodes SC, showed him up as an increasingly unreliable witness and a shady character.
Nassif’s contradictions in his own testimony, which Hodes has called “farcical”, “ridiculous”, “illogical” and “irreconcilable”, led to Hodes asking Judge Frans Kgomo for a postponement on Thursday to allow the defence to approach the national director of public prosecutions, Menzi Simelane, to have the charges against Agliotti withdrawn. Kgomo will rule on the postponement on Friday.
Hodes claimed that Nassif “shot himself in the foot” during his re-examination, in which he contradicted his earlier evidence in chief, and in testimony under cross-examination on many matters.
“The wrong man is in the wrong box,” Hodes said to the judge.
While Nassif struggled in the witness box, Simelane’s new team of state advocates — he removed Gerrie Nel and his team from the case — appeared at times to be drowning in one of the most complex murder cases ever brought to a South African court. The team, led by Dan Dakana, opposed the request for a postponement.
Nassif was shown to have links with dark characters in the underworld and, according to Hodes, knows how to “play the system”.
One cringes at the thought of what Kebble paid him to do — on his own admission he beat up people and broke their legs “when it needed to be done”.
Hodes accused him of protecting his attorney, Tamo Vink, when the latter allegedly beat his wife with a baseball bat and pistol-whipped her before shooting her. Nassif walked in on the scene but told the court he was unaware of any assault, saying that “to this day [Vink’s wife] admits that she shot herself”.
“And did she beat herself up with a baseball bat and the butt of a gun? You were protecting him,” retorted Hodes.
Vink subsequently went into rehab before becoming a police informant.
Hodes argued that Nassif got others to pass on messages so that he would not be linked to incriminating phone calls. He prevailed on his then wife, Kerry, to receive a call from Agliotti’s then fiancée, Lelanie Kyprianides, the night Kebble was shot, and to call the main hit man, Mikey Schultz, on the night that he was ini- tially supposed to shoot Kebble to tell him to call off the plan.
Hodes says he then got Agliotti to call Schultz to tell him to “call off the boys”. Nassif denies this.
Hodes accused Nassif, whose cars have included a Mercedes SL65, two Hummers, a Lamborghini and three different Porsches, of not paying taxes and duties on these vehicles.
None of the cars, which he changed every three to four months, was registered or had number plates, and most were paid for in cash. The Hummers were registered in Botswana and a Porsche GT2 was brought in from London without an import permit.
Nassif admitted to not declaring to the revenue service the money he earned from “knocking” the Kebbles — a reference to him and Agliotti telling the Kebbles they bribed people at their request while keeping the money for themselves.
Nassif’s testimony contradicted that of other state witnesses, including Schultz, and his version of events has changed several times, prompting Hodes to ask sarcastically: “Which version would you like to choose today?”
Phone records show that Nassif had lied about being asleep on the night that Kebble died and that Agliotti could not have called him when Nassif claims that he did.
Nassif, with the trio involved in the shooting of Kebble — boxer Schultz, bouncer Nigel McGurk and panel- beater Faizel “Kappie” Smith — could receive indemnity for their respective roles in Kebble’s “assisted suicide” if Kgomo finds they have been truthful witnesses.
But Hodes questioned his integrity. “You appeared to cooperate with the Scorpions while all you were doing was looking after yourself by getting people to dovetail their versions with you,” he said. He pointed out that Agliotti was not mentioned once in Nassif’s first statement, but was repeatedly implicated in his second.
Nassif described a hierarchy of command starting with Kebble, fol- lowed by Kebble’s business associate, Australian John Stratton, Agliotti and lastly Nassif himself.
His description of Stratton’s role in planning the murder has again raised questions about why efforts to extradite Stratton to South Africa have stalled. His extradition has been requested but has apparently been delayed at diplomatic level.
A former Nassif employee, Stephen Sanders, is expected to be the state’s next witness. Sanders also testified in former police chief Jackie Selebi’s corruption trial about attending meetings with Selebi and Nassif.
The new prosecuting team has not been impressive, faltering as it led state witnesses and often leading evidence for hours without apparent relevance to Agliotti’s guilt.
This week Dakana interrupted Hodes’s cross-examination of Nassif — to Hodes’s clear annoyance — to complain that he did not have the statement that Hodes was referring to. He subsequently found it.
Simelane removed Nel’s team in March after the Kebble family complained that Nel might be keeping Agliotti “on side” to testify in the Selebi trial. Simelane’s reason for removing Nel at the time was that he wanted his team to concentrate on the Selebi trial.
Legal observers are baffled by Dakana’s decision to call Nassif as his fifth, rather than first, witness.
The trial continues.
Indemnity by any other name
Glenn Agliotti’s incriminating evidence against Jackie Selebi may not be used against the drug dealer if he is charged with bribing Selebi.
On Tuesday Judge Meyer Joffe refused to indemnify Agliotti from being prosecuted for corrupting Selebi. This means the National Prosecuting Authority may now charge Agliotti for bribing Selebi with cash and clothes.
But legal observers say the NPA will have a difficult task in convicting Agliotti.
Section 204 of the Criminal Procedures Act, which enables the state to conclude indemnity agreements with state witnesses, stipulates that the evidence of the state witness promised indemnity may not be used against him or her even if a judge decides to refuse the indemnity sought.
This means the state will not be able to use any verbal testimony or statement Agliotti made in the Selebi trial against him.
If Agliotti pleads not guilty, the state will have to prove from scratch that he paid Selebi and received secret reports from him in return, without Agliotti’s evidence.
Agliotti’s former fiancée, Dianne Muller, who saw him handing Selebi money, could be called to testify against him. However, Agliotti was the state’s only witness to testify about what Selebi gave him in return.
The issue of Agliotti’s failed attempt to secure indemnity in the Selebi case came up during a heated interaction between Agliotti’s advocate, Laurance Hodes SC, and state advocate Dan Dakana, who is prosecuting Agliotti for Brett Kebble’s murder. Hodes was applying for the relaxation of Agliotti’s bail conditions, including house arrest.
Dakana implied Agliotti was applying for this after being refused indemnity by Joffe on the corruption charges.
Judge Frans Kgomo asked: “Are we going to speculate about whether the state will charge him?” Dakana responded: “The fact that he has not been indemnified is more enticement for the accused [Agliotti] to escape.”
Hodes said Dakana’s argument was “without basis” and “pure speculation”.
Responded Hodes: “My learned friend [Dakana] may even be charged with murder, so should we put him under house arrest?
I challenge my learned friend to tell me if he has ever successfully prosecuted a [section] 204 witness. Does he think Mr Selebi is going to come and say, ‘yes, he gave me money’?”