Pikoli’s real legacy of neglect

2010-11-27 00:00

THE publicly stated reason why then President Kgalema Motlanthe decided to fire former National Prosecutions Authority head Vusi Pikoli, was that Pikoli had “neglected national security considerations in performing his tasks”.

A cynical media and public dismissed this, arguing instead that the idea was to protect former national police commissioner Jackie Selebi from being prosecuted.

It ignored that the finding of “neglected national security considerations” had come from the same Ginwala Commission whose other conclusions they had taken as gospel.

Selebi went to trial after Pikoli left and has been convicted and sentenced to 15 years’ jail.

The gunmen who confessed to killing mining magnate and common criminal Brett Kebble are walking the streets as free men because of a deal they got when the much vaunted Pikoli was head of prosecutions.

In simple terms, Agliotti’s acquittal, plus the circumstances and aftermath thereof have come to prove that Pikoli had indeed “neglected national security considerations in performing his tasks”.

The bungle that has now sees self-confessed hitmen Mikey Schultz, Faizel Smith and Nigel McGurk return to the streets started under Pikoli.

Clinton Nassif, the man who confessed to have procured the services of the gunmen to help Brett Kebble fulfill his desire for an “assisted suicide” could become the only person to face charges, after the court found he was such a bad witness he did not deserve the indemnity from prosecution his fellow gangsters had received.

We must blame Pikoli for all these things. How he allowed for an entire criminal gang to have a deal that will keep them out of jail even when they had not as much as handed in the murder weapon must qualify as gross mismanagement at best or negligence at worst.

Pikoli ought to have reined in lead prosecutor Gerrie Nel whose zeal to prosecute Selebi at all costs has been criticised by the trial judge in the Agliotti matter.

Nel so wanted Selebi down that he was willing to sup with the devil. Judge Frans Kgomo could have been referring to anyone involved in the case against Selebi and against Agliotti when he said: “This case is about hidden and sinister agendas perpetrated by shady characters. It’s about corrupt civil servants as well as politicians as well as politically connected officials wining and dining with devils incarnate under the shade of darkness.”

Nel got Agliotti to admit being a drug dealer and to agree to a five-year sentence of which he did not have to spend a day in jail, provided he testified against Selebi; to pay a R300 000 fine; and to pay R200 000 to the Assets Forfeiture Unit account.

With hindsight we ought to have picked up that something was amiss when upon his equally farcical arrest by Selebi’s men, Nel chose Ian Small-Smith, who just so happened to be representing Billy Rautenbach, a fugitive from justice with a material interest in the Selebi case. Rautenbach appeared as a state witness and claimed that he had used Agliotti as a money conduit to Selebi to make Rautenbach’s troubles with the law go away.

Small-Smith then negotiated the deal to get the shooters off on condition they testified against Agliotti.

In fairness to Pikoli, he had been put on ice and Mokotedi Mpshe was the acting NPA boss when Nel sought the services of Small-Smith. There is nothing illegal in a state prosecutor choosing whoever he believes is the best criminal lawyer in town, but we are allowed to make inferences when the same defence lawyer shows up representing a fugitive who happens to have the dirt against the prosecutor’s arch enemy.

Even then, Nel’s case was going awry with the state witnesses not directly linking the national police commissioner until Selebi himself took the witness box and nailed his own coffin.

Nel’s removal from the case in May was therefore logical even though it may be argued that it came too late for the new team to fully familiarise itself with the issues. But any case is as good as the facts or its witnesses.

No prosecutor could have legally made the hitmen say they had had contact with Agliotti when they had not — as was the case in this matter.

What now? The NPA has said that it will study the judgment and might appeal or press charges against Nassif. If it does, it will have to jump through the hoop of finding credible witnesses. It is hard to see where such a creature will come from now that the only eye witnesses to Kebble’s “assisted suicide” have been indemnified and should have no vested interest in what happens next.

If it cannot, it should take this case and make it prescribed reading for those who wish to prosecute criminals so they may learn the folly of putting their personal vendettas before the fair administration of justice.

The NPA should take this case and make it prescribed reading for those who wish to prosecute criminals …

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