In a massive blow to the state’s case, murder accused Glenn Agliotti’s damning statement made in his bail application has not been admitted as evidence.
Judge Frans Kgomo ruled in the South Gauteng High Court on Monday morning that the statement could not be admitted because Agliotti had not been warned of the consequences of making the statement in 2006 by the magistrate who presided over the hearing.
Agliotti is accused of the murder of mining magnate Brett Kebble, who was shot in Johannesburg in 2005.
The statement in question would have been detrimental to Agliotti’s case, as in it he refers to being “involved” in Kebble’s “assisted suicide”.
“It is my considered view that if the accused in a bail application intends to make an affidavit, it is the parental duty of the court to warn him fully — this will allow the applicant to make an informed choice,” said Kgomo.
He went on to say that state prosecutor Dan Dakana’s argument on Thursday that Agliotti had been represented by adequate counsel, who should have warned him, was invalid.
“The requisite warning should be issued by the court — if he had been so properly warned then these bail proceedings should be admissible in the subsequent trial,” said Kgomo.
“Whether he was represented by an experienced counsel is not a consideration — The application by the state for the accused’s records of bail proceedings is refused and thus dismissed.”
‘A distortion of the facts’
On Thursday the state, led by prosecutor Dakana, applied for Agliotti’s 2006 affidavit, which was submitted during Agliotti’s bail hearing, to be admitted as evidence.
But defence counsel Laurance Hodes objected to this application, saying that Agliotti was not warned by the magistrate presiding over the bail hearing that the information could be used as evidence against him.
Dakana, however, insisted that Agliotti had been aware of the consequences when making the statement, and had had substantial legal representation at the time.
Following this ruling, things became heated as state prosecutor Kholeka Kgaleka and Hodes argued over documents being supplied by the state, as a new witness, MTN’s Hilda du Plessis, took the stand to testify about Agliotti’s cellphone records.
Hodes claimed the defence had not been supplied with the statements or data by the state, who in turn lambasted the defence for “making noise”.
“It’s not only a trial by ambush, it’s a distortion of the facts,” said Hodes. “I object to any use of cellphone records. No statement was ever provided to us.”
The trial continues.
The M&G Centre for Investigative Journalism, supported by M&G Media and the Open Society Foundation for South Africa, produced this story.www.amabhungane.co.za.