In promising indemnity from prosecution to the hitmen who killed mining boss Brett Kebble, did the National Prosecuting Authority go a step too far?
Unable to secure a key witness in court, it would seem so.
The prosecution team, which granted indemnity to the three hired gunmen who killed mining magnate Brett Kebble, wanted fugitive John Stratton to go on trial with Glenn Agliotti.
Stratton was Kebble’s business associate and turned out to be central to the case but he was not in court.
This week, however, Agliotti cut a lonely figure in the box as witnesses gave details of the events that led to the murder of Kebble in September 2005.
A government official told City Press the team led by prosecutor Gerrie Nel wanted Stratton to be in the dock alongside Agliotti.
This, the official said, was because they were mindful of the gunmen’s affidavits, which shed light on the dual roles played by Agliotti and Stratton.
But Stratton has so far successfully frustrated the state’s attempts to extradite him from Australia, on the grounds that no treaty exists between the two countries.
A further setback for the state was the fact that Nel and his team were pulled off the Kebble murder case by NPA head Menzi Simelane. The case was given to a new team in May.
Nel and his team successfully prosecuted former national police commissioner Jackie Selebi, who is due to be sentenced in the high court tomorrow.
The team used Agliotti as a star witness in Selebi’s trial after he struck a deal for a suspended sentence on a drug-dealing charge, in return for his testimony against Selebi.
If the same team had been used, they could have built a bridge between the two cases.
But in the witness box this week the three hitmen – Mikey Schultz, Nigel McGurk and Faizel “Kappie” Smith – came close to exonerating Agliotti.
He was clearly not the paymaster and none of them dealt with him.
Kebble’s former security head, Clinton Nassif, told the court he had to sell a property to make payments to the three killers, making the link with Agliotti even more tenuous.
Constitutional law expert Pierre de Vos questioned the manner in which the state had offered the gunmen indemnity.
“This arrangement by the NPA, to offer possible indemnity to Kebble’s killers in order to prosecute Agliotti, who may or may not have been involved directly in the murder, does not, on the available evidence, seem very wise or fair.”
De Vos told City Press “it looks like disaster for the prosecution team” at the moment.
Schultz, McGurk and Smith will know only at the end of the trial whether they will be prosecuted.
The judge must decide whether or not they testified “frankly and honestly” in terms of the Criminal Procedure Act.