An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
What on earth is going on at the Brett Kebble murder trial? So far two state witnesses have testified that they were involved in the killing of former mining magnate and ANC Youth League benefactor, Brett Kebble. They claim it was an “assisted suicide” and that they were so bad at the job that they were only successful at killing Kebble on the third attempt. Who could have made up this stuff?
First, boxer turned hit-man, Mikey Schultz, testified that he had actually pulled the trigger (after several bumbling attempts), but that Glen Agliotti had nothing to do with the murder. They then “sped off” (but kept to the speed limit for fear of being caught on a speed camera) and destroyed the murder weapon in a chop-shop before melodramatically dumping the pieces of the gun into the sea.
Then ex Transvaal rugby player turned gangster (what is it with these sportsmen – can we ask some of them to go to work on the All Blacks before the next Tri-Nations game?), Nigel McGurk, told the court of his involvement in several hits – including the Kebble hit – but again stated that Agliotti had nothing to do with the murder of Kebble. (McGurk, like Schultz, may not be a very good witness, as advocate Laurence Hodes, appearing for Agliotti, at one point told him: “You’ve got a memory like red wine, it improves over time”.)
Yet Glen Agliotti is the person standing trial for the murder of Brett Kebble, while the two people who actually now claim to have killed Kebble are state witnesses and may well obtain indemnity from prosecution if the court finds that they testified frankly and honestly about the murder.
(Advocate Gerrie Nel, the guy who secured the corruption conviction against former police chief Jackjie Selebi, was supposed to lead the prosecution in this case but Menzi Simelane decided at the last minute to replace him. Not surprisingly, the new prosecutors appeared unprepared to lead the evidence: the lead prosecutor Advocate Dan Dakana today were constantly told what to ask by his colleague Advocate Kholeka Gcaleka.)
In any event, this arrangement by the NPA to offer possible indemnity to Kebble’s killers in order to prosecute Glen Agliotti, who may or may not have been involved directly with the murder at all, does not – on the available evidence – seem very wise or fair.
Of course, the trial is far from over and it might yet transpire that Agliotti was the mastermind behind the murder of Kebble and that the NPA had every reason to cut a deal with the actual killers to get to the “big fish”. But if it is found that Agliotti was not involved or that his involvement was not central to the killing, many questions will be asked about the decision by the NPA to cut a deal with the very people who claim to have killed Kebble.
Whatever transpires, there was nothing illegal in the deal done by the NPA with Shultz and McGlurk. Section 204 of the Criminal Procedure Act allows the NPA to cut deals like this and if the judge finds that any witness has testified “frankly and honestly”, the judge may indemnify that witness from prosecution – even if the witness had incriminated him or herself in the very crime he or she is testifying about. The discretion to grant indemnity is in the hands of the judge, so if the judge finds that a witness has not been frank and honest, the judge may refuse to grant indemnity to that witness – regardless of any deal done between that witness and the NPA.
Could it be that the NPA is playing a very clever game to try and secure the conviction of all the main players in this drama? Did the NPA offer indemnity to the main killers, knowing that they would be such bad witnesses that they would not testify frankly and honestly, thus making it impossible for the judge to grant them indemnity and opening the way for their own prosecution? Probably not, because section 204(4) states that the self-incriminating evidence of a witness denied indemnity could not be used against him if that witness were to be tried later.
This means that if Schultz or McGurg is not granted indemnity and the NPA decided to prosecute them for the murder of Kebble, the NPA would not be able to rely on the evidence led in court over the past two days in which they had explained in detail how they had killed Kebble.
Unless the NPA has more evidence up its sleeve implicating Agliotti as the mastermind of the Kebble murder, the indemnity granted to all the other main players in this drama makes little sense. Unless, of course, this was done to put pressure on Agliotti to force him to testify against his old friend Jackie Selebi. “If you do not testify truthfully against Selebi and implicate him, we will prosecute you for the murder of Kebble, so you better testify.”
If this was indeed the case – and I stress, it is too early to say for certain that it was – then many questions will be asked about the manner in which the NPA acted in these matters and the wisdom of the deals it cut. Although it is very important for the state to prosecute very powerful people like Selebi on charges of corruption (after all, when the top cop in the country is corrupt, the whole criminal justice system becomes suspect), I am not sure that it would be more important than securing the conviction of the actual murderers in a murder case – even where the case is one of alleged “assisted suicide”.
Personally I will withhold judgment on this until the end of the Kebble trial. Who knows what other evidence will be led by the state to vindicate its decision to cut a deal with the very people who now claim to have pulled the trigger in order for the NPA to go after the man who was found to have bribed the top cop.
Whatever happens though, the case has already provided utterly bizarre and riveting testimony. Surely somebody at ETV (or one day when they have money again, the SABC) must be commissioning a drama series based on these events. It has everything: political intrigue; larger than life characters (some of them marginally known sportsmen), a murder victim who was alleged to have led a triple life, sex and scandal with the alleged involvement of a rent boy, and office politics in the NPA.
NOTE: Some of the details in this post were gleaned from the riveting Twitter feeds posted by the Mail & Guardian amaBhungane reporter following the Kebble trial. Find them at: http://twitter.com/amaBhungane.BACK TO TOP