The acquittal of Brett Kebble murder accused Glenn Agliotti this week has turned the spotlight on National Prosecuting Authority (NPA) boss Menzi Simelane’s involvement in the matter.
Simelane personally removed chief prosecutor Gerrie Nel and his team from the case in March and “instructed” Johannesburg’s acting director of public prosecutions to replace them with state advocates Dan Dakana, Kholeka Gcaleka and Lethabo Mashiane.
Nel, his junior advocate, Andrea Johnson, and senior investigator Andrew Leask have initiated and led the Scorpions’ Operation Bad Guys investigation since March 2006.
The same team successfully prosecuted former police chief Jackie Selebi for corruption in July. They also negotiated plea bargains with Agliotti and Kebble’s former security head, Clinton Nassif, on charges of drug trafficking, and are leading the prosecution of suspected hashish dealer Stefanos Paparas in the Germiston Magistrate’s Court.
The new prosecutions team in the Kebble murder trial, led by Dakana, came in for a tongue-lashing from Judge Frans Kgomo on Thursday during his ruling on Agliotti’s application for discharge.
Kgomo accused them of being ill-prepared during arguments, of contradicting their own witnesses and of withholding documents from the defence.
After the verdict, NPA spokesman Mthunzi Mhaga said they did not regret replacing Nel and his team as it was “standard practice” for prosecutors to hand over cases to their colleagues.
The Mail & Guardian reported in February that talks to have Nel and his team removed from the case were initiated by the Kebble family, who didn’t trust Agliotti’s closeness to the Bad Guys team.
During a meeting with Simelane, the Kebble family’s attorney, Kim Warren, told him they were concerned about a possible conflict of interest because of Nel’s involvement as prosecutor in the Selebi case.
The Kebbles felt Nel and his team had to keep Agliotti “on side” because of his crucial evidence in the Selebi matter.
Agliotti testified about bribes paid to Selebi, clothes bought for Selebi’s sons and intelligence reports shown to him by Selebi about his involvement in the international drug trade.
Their reliance on Agliotti’s evidence to nail Selebi could have impaired the team’s judgement in prosecuting him for Kebble’s killing, the family argued to Simelane.
Ironically, the poor conduct of the new team that replaced Nel, Johnson and Leask was an important factor in Kgomo’s judgment that let Agliotti off the hook.
In his ruling, Kgomo referred to the turf war between the police and the Scorpions that led to the bungling of the Kebble murder probe.
It was not his duty to unravel what exactly happened, said Kgomo, but it was clear the probe was “hampered, if the course of justice was not obstructed”.
At the heart of the dispute between the police and Scorpions was the decision to grant indemnity to Kebble’s hit men, and negotiate plea bargains with Agliotti and Nassif in exchange for their evidence against Selebi.
Nel and former prosecutions boss Vusi Pikoli often argued that they were satisfied the compromise was fair in light of allegations of corruption against South Africa’s number one policeman.
Investigating officer Colonel Pieter Van Heerden testified that the decision to cut deals with Kebble’s killer, Mikey Schultz, and his assistants, Nigel McGurk and Kappie Smith, “did not sit well with top brass in the police as well as Selebi”.