The trial of Brett Kebble murder-accused Glenn Agliotti entered its 13th day at the High Court in Johannesburg on Thursday.
But it was postponed after the State and the defence had argued over the admission of evidence from Agliotti’s December bail hearing.
The State, led by Deputy Director of Public Prosecutions in Gauteng Dan Dakama wanted an affidavit by Agliotti submitted at the 2006 bail hearing to be admitted into evidence at the trial. In it he admits involvement in the shooting of the mining magnate.
Defence counsel advocate Laurance Hodes SC is opposing the application.
Judge Frans Kgomo said he will rule on the matter on Monday.
Four charges
He was unable to attend trial on Friday due to a prior engagement.
Agliotti is facing four charges, two of conspiracy to murder, one attempted murder charge and a murder charge.
The first count is conspiracy to commit the murders of Mark Bristow, Jean Daniel Nortier, Mark Wellesley-Woods and Stephen Mildenhall. The second count is the attempted murder of Mildenhall.
The last two are related to conspiracy to murder mining magnate Brett Kebble, and Kebble’s murder.
Kebble was shot several times in his car in Melrose, Johannesburg in 2005.
Dakana argued Agliotti did not testify during the hearing, but that Hodes had filed an affidavit on his behalf.
The document confirms Agliotti’s involvement in the Kebble killing, once it was decided to make his death appear to be a hijacking.
Assisted suicide?
It also revealed that Kebble’s death was in fact an “assisted suicide”, which the prosecution, led by Advocate Gerrie Nel at the time, agreed was possible.
Dakana submitted Agliotti was, at the time of his bail hearing, “adequately and efficiently represented” by “able counsel”.
“The bail document that the State is referring to was carefully drawn up and the accused was legally assisted,” he told the court, citing case law to back up his argument.
However, Hodes said because Agliotti did not testify in the matter, he was not warned by the Magistrate Chris Eksteen that the evidence contained in the affidavit could be used against him.
“The failure by the respondent [Agliotti] to be warned by the magistrate… is fatal to the admission thereof in a subsequent trial… he had to be explicitly and expressly warned.
“The court… had to… inform the accused that anything he said could be used against him.”
According to the Criminal Procedure Act an accused has to be warned before testifying in a bail hearing. Both the State and the defence agreed the magistrate had not provided any warning to Agliotti.
Among other details revealed in Agliotti’s affidavit, were that he was a prefect, played first team rugby and was the first chorister in his high school choir. He also supported numerous charities.
Agliotti’s work
In terms of his work Agliotti stated in the affidavit: “I’m involved in commodity dealing and raising finance for large projects involving coal, gold, diamonds”.
Earlier on Thursday, Hodes tore into the prosecution for their failure to provide statements by witnesses they were calling to testify, saying this could prejudice his client.
Hodes said it was “unacceptable to conduct a trial in this manner”.
This was after the State explained that their ninth witness, from cellphone company MTN, was unable to testify as she was not yet prepared.
The prosecutors, who took over from Nel’s team earlier this year, said they had provided Hodes with all the statements in their possession.
“We cannot give them what we don’t have,” said Advocate Kholeka Gcaleka.
Judge Frans Kgomo postponed the trial to Monday, August 16, when he would rule on the affidavit.
He also urged the State and defence to “sit down and agree in order to disagree”. Kgomo said it was “true” the defence had to be provided with all the information necessary to prepare for the trial.
“It is a very sensitive case that must be treated with the sensitivity it deserves.”
He urged the State to provide the defence with the necessary statements.