State prosecutor Gerrie Nel has argued this morning, that former national police commissioner, Jackie Selebi should be "convicted on both charges of corruption and defeating the ends of justice" as his version of events continuously "changed" to suit his case.

Nel, who is concluding the state's case with their final arguments at the Johannesburg High Court, said: "It is significant to mention, that in the defence's heads of argument, of 307 pages, the accused’s version is never once discussed. But I wouldn't blame them, I would have followed the same action. We argue there is no way that a court would find the accused’s version to be true- in order to do so he would have to pick a version," Nel argued.

Selebi, who pleaded not guilty to charges of corruption and defeating the ends of justice, is accused of accepting gifts and R1.2-million from convicted drug lord Glenn Agliotti, slain mining magnate Brett Kebble and businessman Billy Rautenbach in return for favours and access to confidential police information.

The state argued this morning that "It is of crucial importance that the accused’s failure to put his version to the State witnesses be taken into account."

Nel argued that it was important that Selebi's defence did not put it to Agliotti, that he was only an informant to Selebi, and Selebi was his handler - as Selebi later testified in his own evidence in chief.

" We argue that these failures are indicative of a developing and ever changing version/defence by the accused. It is interesting to note that the issues that he failed to canvass with the witnesses were those which he was criticized on during the 174 argument. It is further noteworthy that he changed his versions overnight or after the extended break in his cross-examination."

Further, Nel told the court: "We will refrain from calling the accused the worst witness who has ever given evidence in a South African Criminal Court. We will, however, submit that it is an undeniable fact that the defence can no longer argue that Agliotti remains the worst witness who has ever given evidence in a South African court.

Arguments continue.

THE STATE'S HEADS OF ARGUMENT: FULL DOCUMENT

IN THE SOUTH GAUTENG HIGH COURT

(HELD AT JOHANNESBURG)

CASE NO. 25/2009

JPV 0157/2008

In the matter between:

THE STATE

Versus

JACOB SELLO SELEBI ACCUSED

1. INTRODUCTION

1.1 The accused is charged with corruption and defeating and/or obstructing the administration of justice.

1.2 The State led the evidence of 18 witnesses; the accused testified and called 5 witnesses.

1.3 It is the State’s argument that we have proven our case against the accused on both counts beyond any doubt.

1.4 The State will, in argument, deal with the history of the proceedings (Annexure 1) and focus on two timelines. The first timeline will deal with the facts of the matter and the other will set out the major incidents that occurred during the investigation of the matter. The time lines will be discussed infra and supplemented by four visual presentation charts attached as annexure 2 (facts), 3 (investigation) and 4 (combination of facts and investigation).

1.5 These time lines do not only serve as a clear indication of:

1.5.1 the development of the corrupt relationship between the accused and Agliotti and

1.5.2 the progress and process of the investigation but

1.5.3 also serve as objective corroboration for the State’s Case.

2. TIMELINE OF THE COURT PROCEEDINGS

2.1 On 25 September 2008 the accused filed an application for further particulars.

2.2 On 5 December 2008 the State filed it’s reply thereto.

2.3 On 5 February 2009 the accused filed a request for further and better particulars.

2.4 On 10 February 2009 the State provided more particulars.

2.5 Thereafter the accused lodged an application in terms of Section 87 of the Criminal Procedure Act, which was heard by the Honorable Coetzee J from 18 to 20 February 2009.

2.6 The Honourable Coetzee J found in favour of the accused, although not in terms of Section 87 of the Criminal Procedure Act but in terms of Section 35(3) of the Constitution.

2.7 On 6 March 2009 the State applied for leave to appeal. At the conclusion of the hearing, the Honourable Coetzee J dismissed the application.

2.8 On 27 March 2009 the State petitioned the Supreme Court of Appeal and filed it’s papers.

2.9 On 14 April 2009 the State applied for a postponement of the trial hearing. On this date the accused’s response to the State’s petition application remained unanswered.

2.9.1 During the postponement application the accused indicated that he would abandon the order of Coetzee J compelling the State to provide him with further documents. It must, however, be noted that there was, on this date, no formal abandoning of the order.

2.10 On 30 April 2009 the accused abandoned the order of 20 February 2009, granted by the Honorable Coetzee J, wherein the State had been ordered to furnish the accused with certain documents.

2.11 On 4 May 2009 both parties returned to court to inform the Honourable Joffe J of the status of the petition application. The court was informed that the accused had formally abandoned the order of Coetzee J, as mentioned supra.

2.12 On 4 May 2009, Counsel for the accused also informed the court that the accused would prefer a trial without further delay and further indicated that the accused is an educated man and that he had made an informed decision to abandon the order of Coetzee J.

Record: pg 105 lines 5-8 (4 May 2009)

2.13 The court then postponed the matter for the trial to commence on 5 October 2009.

2.14 On 5 October 2009 the charges were put to the accused whereupon he entered a plea of not guilty and tendered a plea explanation (Exhibit X).

2.15 On 6 October 2009 the State called it’s first witness, Norbert Glenn Agliotti (Agliotti). His evidence-in-chief commenced on 6 October 2009 and continued on 7 October 2009. On 7 October 2009, in response to an objection by the defence, the State argued for an amendment to the indictment and the amendment was granted. There after the evidence-in-chief of Agliotti continued until 8 October 2009.

2.16 On 8 October 2009, Agliotti’s cross-examination commenced and continued until 2 November 2009.

2.17 Agliotti’s evidence-in-chief ran over three court days and his cross-examination over a period of nine court days. He was in the witness stand for a total of eleven days and his record of evidence spanned 1047 pages.

2.18 On 15 October 2009 (record pg 530-554), the State argued to exclude an audio visual DVD recording, of a meeting between Agliotti and then Commissioner Mphego, apparently made on 7 January 2008, from being introduced as evidence. The court provisionally allowed the evidence of the DVD to be led.

2.19 On 16 and 20 October 2009 the cross-examination of Agliotti continued.

2.20 On 21 October 2009, the defence lodged an application for the recusal of the presiding officer, the Honourable Joffe J.

2.21 On 30 October 2009 the application for recusal was dismissed.

2.22 On 2 and 3 November 2009, the cross-examination of Agliotti continued.

2.23 On 2 November 2009, the defence interposed the cross-examination and lodged an application for a Special Entry in terms of Section 317 of the Criminal Procedure Act, No 51 of 1977. This application will be dealt with in this argument.

2.24 On 4 and 5 November 2009, Diane Marie Muller testified in chief and her cross-examination was finalised over these two days.

Record: pg 1048-1081 (Evidence-in-chief)

pg 1081-1147 (Cross-examination)

2.25 On 6 November 2009, Martin Flint testified.

Record: pg 1159-1187 (Evidence-in-chief)

pg 1187-1218 (Cross-examination)

2.26 On 9 November 2009, Dean Friedman testified.

Record: pg 1222-1286 (Evidence-in-chief)

pg 1286-1348 (Cross-examination)

2.27 On 11 November 2009, Stephen Colin Sanders testified.

Record: pg 1382-1398 (Evidence-in-chief)

pg 1398-1410 (Cross-examination)

2.28 Paula Stephanie Roeland also testified on this day.

Record: pg 1411-1417 (Evidence-in-chief)

pg 1417-1419 (Cross-examination)

2.29 Clinton Raymond Fouché also testified on this day.

Record: pg 1422-1425(Evidence-in-chief)

pg 1425 (No cross- examination)

2.30 On 12 November 2009, the following witnesses testified:

2.30.1 Aubrey Shlugman. He was not cross-examined.

Record: pg 1426-1429 (Evidence-in-chief)

2.30.2 Assistant Commissioner Mark Hankel.

Record: pg 1429-1470 (Evidence-in-chief)

pg 1470-1484 (Cross-examination)

2.30.3 Assistant Commissioner Els

Record: pg 1493-1495 (Evidence-in-chief)

pg 1495-1499 (Cross-examination)

2.30.4 Snr. Supt. Nelson

Record: pg 1500-1502 (Evidence-in-chief)

pg 1502-1504 (Cross-examination)

2.30.5 Shaun T. Maharaj

Record: pg 1505-1513 (Evidence-in-chief)

pg 1513 (Cross-examination)

2.31 On 17 November 2009 the following witnesses testified:

2.31.1 Jurgen Kögl

Record: pg 1515-1519 (Evidence-in-chief)

pg 1519-1522 (Cross-examination)

2.31.2 Vusumzi Patrick Pikoli

Record: pg 1522-1550 (Evidence-in-chief)

pg 1550-1620 (Cross-examination)

2.32 On 19 November 2009, the following witnesses testified:

2.32.1 Conrad Muller Rautenbach

Record: pg 1624-1638 (Evidence-in-chief)

pg 1638-1656 (Cross-examination)

2.32.2 Hermanus Adriaan Jacobus Nel

Record: pg 1656-1669 (Evidence-in-chief)

pg 1669-1674 (Cross-examination)

2.33 On 23 November 2009, the following witnesses testified.

2.33.1 Aassif Surtee

Record: pg 1676-1688 (Evidence-in-chief)

pg 1688-1691 (Cross-examination)

2.33.2 Andrew Gordon Leask

Record: pg 1694-1716 (Evidence-in-chief)

pg 1716-1753 (Cross-examination)

2.34 On the same day, Adv Moerane SC, on behalf of the Minister of State Security, lodged an application in an attempt to prohibit the State from leading the evidence of one Barry Gilder.

2.34.1 On 24 November 2009 the court dismissed the application.

2.34.2 On 1 December 2009, Adv Moerane SC applied for leave to appeal but this application was also dismissed.

2.34.3 On 29 January 2010, the Supreme Court of Appeal dismissed the application by the Minister of State Security for leave to appeal.

2.34.4 On 1 February 2010, Adv Moerane informed the court that he would petition the Constitutional Court.

2.35 On 1 March 2010, Barry Gilder testified.

Record: pg 1839-1858 (Evidence-in-chief)

pg 1858-1865 (Cross-examination)

2.36 On 2 March 2010, admissions in terms of Section 220 of the Criminal Procedure Act, No. 51 of 1977, were made and the State closed it’s case.

Exhibit XX11

2.37 On 12 April 2010 the application for a discharge in terms of the provisions of Section 174 of the Criminal Procedure No. 51 of 1977 was dismissed.

2.38 The accused commenced his evidence on 15 April 2010 and completed his evidence-in-chief on 16 April 2010. The cross-examination was completed on 30 April 2010.

Record: pg 2234-2364 (Evidence-in-chief)

pg 2364-3100 (Cross-examination)

2.39 On 3 May 2010 Director Sally De Beer testified.

Record: pg 3108-3114 (Evidence-in-chief)

pg 3114-3119 (Cross-examination)

2.40 On 3 May 2010 Eunice Grové also testified.

Record: pg 3119-3130 (Evidence-in-chief)

pg 3130-3139 (Cross-examination)

2.41 On 4 May 2010 Director Reginald J. Taylor testified.

Record: pg 3142-3155 (Evidence-in-chief)

pg 3155-3170 (Cross-examination)

2.42 On 4 May 2010 Lawrence S. Mrewebi also testified.

Record: pg 3171-3191 (Evidence-in-chief)

pg 3191-3212 (Cross-examination)

2.43 On 5 May 2010 Prince Mokotedi testified.

Record: pg 3214-3223 (Evidence-in-chief)

pg 3223-3236 (Cross-examination)

2.44 On 5 May 2010 Johan van Loggerenberg also testified.

Record: pg 3238-3246 (Evidence-in-chief)

2.45 The defence closed it’s case on 7 May 2010.

3. THE ACCUSED’S DEFENCE IN GENERAL

3.1 During the accused’s application for a discharge (Section 174 of the CPA) we argued the strengths and weaknesses of the State’s case. The difference at this stage of the proceedings is that the accused has revealed to the court insight into his version.

We will, under this heading, deal with the accused’s version in general but in particular with his defence as set out in the Section 115 plea explanation.

3.2 It is of crucial importance that the accused’s failure to put his version to the State witnesses be taken into account. We argue that these failures are indicative of a developing and ever changing version/defence by the accused. It is interesting to note that the issues that he failed to canvass with the witnesses were those which he was criticized on during the 174 argument. It is further noteworthy that he changed his versions overnight or after the extended break in his cross-examination.

3.3 It was never put to Agliotti:

3.3.1 That the accused’s sole interest in him was that of information gathering. In fact the accused failed to call witnesses (ex colleagues) to corroborate this version.

On the accused’s version, Agliotti was the best and cheapest source of information for the SAPS and SARS.

However, the accused’s willingness to allow the Kya Sands information to be “sold” to the SAPS is in stark contrast to his evidence.

3.3.2 Agliotti was never challenged on the version that it was on the accused’s insistence that the Tidmarsh and Kebble meetings took place and neither that Nassif arranged the Eyhab Jumean meeting.

3.3.2.1 Exhibit H5a, whilst being available, was never put to Agliotti. The dilemma for the accused was that Agliotti would have denied that he was shown H5a, because the Kebbles are not mentioned therein. Although on the accused’s own version, he now admits having shared secret information with Agliotti, the accused was reluctant to engage with Agliotti on the details thereof with regard to H2.

3.3.2.2 We argue that the accused needed time to “declassify” the document before it could be presented.

3.4 Leask, being present at the 25 July 2007 meeting and with Pikoli at the 30 to 31 August 2007 meeting, where the decision to proceed with the application for warrants was taken, was never confronted nor challenged on the accused’s version of why he was prosecuted.

It was never put that a case was “manufactured” against the accused and, if so, for whatever purpose.

3.5 The only inference to be drawn is that the accused had to develop his version as his evidence was tested in cross-examination and/or did not want to run the risk that if Agliotti, Pikoli and Leask were confronted with his “real version” they could respond and prove the accused wrong.

Leask in his evidence stated:

“I find it extremely difficult to understand how that could have ever have happened without me and my team having knowledge of that taking place. We as I have said, we conducted an investigation based on information that was collated, verified, investigated and all of it has been done …… So I find it extremely difficult to even think that that could happen.”

Record: pg 1749 line 18-25

pg 1750 line 1-5

3.6 The accused was content and thought it would be sufficient to rely on wide generalizations and called witnesses, who in our view, illustrated that they nurtured very little support for the DSO as an institution and, more particularly, who were disposed to articulate their disgruntlement regarding the prosecutor and investigation team.

3.7 The accused not only failed to use the opportunity to call his former colleagues to corroborate his version but, more importantly, failed to put his version to the State witnesses and some of his former colleagues who testified in the State’s case, that he, as the Director General of the South African Police Service, handled Agliotti as a source.

3.8 Hankel, a very senior policeman, gave evidence that he was in overall control of Operation Chaser. However, the accused’s alleged extremely significant role in the Yster-Garrido investigation was never put to Hankel.

In our view this was because Hankel would have found it absurd and uncanny, as we do, that the accused would handle Agliotti as a source on his own.

3.9 The combination of the accused’s plea explanation, his evidence and the irrelevant witnesses called by him clearly indicate the accused as being:

3.9.1 Someone who would make wide allegations about criminal actions by others.

3.9.2 Someone who would call people liars but object to being called a liar himself.

3.9.3 Someone who would adapt his evidence in reaction to the State’s case.

3.9.4 Someone who has no problem with consulting with State witnesses.

3.9.5 Someone who would create and submit exhibits in order to mislead the court.

3.9.6 Someone with no respect for the truth.

3.10 We will refrain from calling the accused the worst witness who has ever given evidence in a South African Criminal Court. We will, however, submit that it is an undeniable fact that the defence can no longer argue that Agliotti remains the worst witness who has ever given evidence in a South African court.

3.11 The court will, with respect, in evaluating the accused’s evidence take into account that the accused in his own words is “an educated man”, was the head of not only the South African Police Service (probably the largest police force in the world), but also the President of Interpol. He was someone who was very aware of his position and the fact that unexpected deposits into his bank account would be likely to attract suspicion. He occupied a rare position of trust and his integrity and good judgment should have been beyond reproach.

3.12 It was, in our view, appalling to hear that the accused had personally consulted with a State witness, before the State had closed it’s case and/or made the witness available to the defence, and that during his cross-examination he personally consulted with a potential defence witness on the merits of the matter.

Even more appalling was his attempt to explain that he never knew Thema was a State witness or that his wife could be a defence witness.

The accused, without input from his legal team, quoted from files that he brought along during cross-examination and even drafted documents during cross-examination to assist him in his evidence.

The court will not accept that the accused was not properly consulted and that all these issues he wanted to include during his evidence was not discussed or dealt with. The only inference must be that he not only showed no respect for the court but neither for his defence team.

3.13 All of this is indicative of an arrogant and disrespectful person who was over impressed with his own seniority and perceived importance and who would “crawl” to no one.

Record: pg 2337 lines 22-25

pg 2618 lines 4-6

3.14 His plea explanation and evidence-in-chief is indicative of a total

disbelief that anyone would be so unwise as to investigate him.

This also became clear during his evidence:

“How am I expected to give police to Anton Ackerman to investigate me and possibly charge me for the fight against apartheid.”

Record: pg 2286 lines 10-25

3.15 The accused’s defence in his plea explanation is one of a bare

denial coupled with allegations of a malicious prosecution.

Record: pg 3 – pg 9

3.16 In summary, the accused based his “malicious prosecution”

argument on three legs:

3.16.1 The accused was targeted because of his views on the DSO’s integration into the SAPS.

3.16.2 The accused was targeted because he received information about the correspondence between Ngcuka and Ramsay.

This particular “conspiracy” was never developed by the accused. There exists no suggestion on the record that Ngcuka influenced his prosecution. It is unclear when, how and who Ngcuka must have influenced to initiate the investigation and/or to influence the decision to prosecute. The accused failed to even suggest that Ngcuka knew that he was in possession of the Ramsay letter.

It is unclear why Ngcuka would, in 2006, pursue the accused because of a letter dated 12 June 2000. It is all the more confusing since this supposedly occurred at a time when he was no longer the National Director of Public Prosecutions. Furthermore, the allegations of Ngcuka attempting to solicit a bribe proved to be false.

3.16.3 Thirdly the corruption allegations against Pikoli. The accused wishes the court to believe that at a meeting, at the end of 2005, Pikoli was confronted with:

3.16.3.1 The shares his wife received,

3.16.3.2 the Ramsay letter and

3.16.3.3 the warning that Pikoli “should not deal with fugitives with the assistance of Foreign Intelligence Agencies.”

3.17 It is our argument that the court will have no difficulty in rejecting outright the accused’s version that this meeting, at the end of 2005, ever took place.

3.17.1 Pikoli denied that the meeting took place.

Record: pg 1568 lines 9-13

3.18 On the accused’s own version (one of the versions) the discussion about the Ramsey letter happened shortly after he received the letter from Tidmarsh.

Record: pg 2397 line 1

pg 2399 line 2-7

The Tidmarsh meeting occurred on 19 April 2005 and the accused indicated that he would not have waited 4 or 6 months to discuss it with Pikoli but discussed it “at the earliest opportunity I had with him.”

3.19 The accused contradicted himself about the particular meeting and placed the phrase “Oh it’s a murky world” in the November 2006 meeting.

The accused admitted that he was wrong in his plea explanation when he indicated the Ramsey letter was discussed at the end of 2005.

“So you made a mistake to say that was at the end of the year? I made a mistake yes.”

Record: pg 2782 lines 5-6

pg 2783 lines 3-4

pg 2784 lines10-25

3.20 In his attempts to place this important meeting at the end of December 2005 the accused found himself unable to respond or explain his different versions:

“I am putting to you the evidence the Ramsay letter on your own evidence during cross-examination was discussed shortly after you got hold of the letter and that letter you got hold of on 19 April and your evidence is shortly after that you discussed it with Mr. Pikoli remember? No answer”

Record: pg 3075 line 12-16

pg 3080 line 20-25

3.21 The evidence deteriorated to such an extent that the accused testified that he showed Pikoli the DVD in 2005 – before the investigation was authorized;

“Did you show him the DVD then? In my office. In 2005? Not in his office, in my office.

Yes but Mr Selebi (intervenes) – I say so”

Record: pg 3080 line 17-19

It begs the question: why he would show Pikoli a recording of an interview with Agliotti before any allegations linking Agliotti and the accused had been made? There is just no answer to the question of what the purpose would have been.

The predicament he found himself in would tend to explain his strange demeanor where he chose to face the public gallery rather than focus on the court proceedings.

Record: pg 3081 lines 14-25

3.22 This meeting is of significance for the accused as, on his version, it gave rise to the authorization of the investigation in January 2006. It is the accused’s version that he has been the victim of a conspiracy. If this meeting never happened the court will have to find that Pikoli had no malicious intent when he agreed to the DSO getting involved in the Kebble murder investigation.

3.23 It is furthermore improbable that the accused would discuss the allegations of corruption with the suspect, even before the investigation started.

To explain the clearly improbable meeting, the accused informed the court that he, as the Head of the SAPS needed the “Head of State’s” permission to investigate Pikoli and, even more ridiculous, that an admission by Pikoli was not sufficient to warrant an investigation.

Pikoli’s evidence was that he kept the president informed of the progress and sought assistance but never that he asked for permission to investigate the accused.

Record: pg 3085 line 1-20

3.24 It is our respectful argument that the court should reject the allegations leveled at Ngcuka and Pikoli concerning their role and motivation as a conspiracy to prosecute the accused.

3.25 Although the accused attempted to deflect attention away from his

weak and dishonest evidence by calling witnesses to do no more than muddy the facts and/or attempt to embarrass the prosecution team and, in particular, the lead prosecutor, the court is left with a defence of a total denial. More specifically, it is a denial that he ever received any money or gifts (with the exception of a Swiss army knife) from Agliotti.

Unfortunately for the accused a detailed evaluation of the facts prove, beyond any doubt, that the accused received large amounts of money from Agliotti and in due course rewarded him, inter alia, with information that ensured Agliotti and his friends protection from criminal investigation.

3.26 We argue that Agliotti’ version is corroborated in material aspects by, not only other witnesses and objective evidential material, but also by the accused’s version and is supported by the probabilities.

We argue that corroboration by mean of documentary and/or real evidence may be stronger than viva voce evidence by other witnesses:

In R v Sikosana 1960(4) SA 723 A at 729 D the court remarked:

“I find there no limitation placed upon the kind of evidence that may adequately confirm the confession or prove aliunde the commission of the offence charged. Proof of either or both of these factors may be purely circumstantial, but may conceivably be so utterly conclusive as to be far more satisfactory than the testimony of a person who purports to have been an eye witness.”

It is trite law that the court, when approached by two conflicting versions, will take the probabilities and the improbabilities of these versions into account. The Honourable Judge Leon said in S v Singh 1975 (1) SA227 (N) on 228G:

“The proper approach in a case such as this is for the court to apply its mind not only to the merits of demerits of the state and the defence witnesses but also to the probabilities of the case...”

4. CORRUPT RECEIVER

4.1 The accused has denied that he ever received money from Agliotti. This creates a dilemma for the defence because if it is found that he in fact received money, the reasons why he received money and his intentions during the receipt thereof are of no consequence.

His defence is simply that he has not received any money.

4.2 We reiterate our argument, which we initially raised during the argument in the Section 174 application, an argument supported by the defence, that the court would establish the intention of the receiver and that the intention of the corruptor is of little consequence.

Record: pg 2213 line 2-8

4.3 The accused is charged as the corrupt receiver.

See: CR Snyman: Criminal Law, Fifth edition, pg 420

4.4 If the court accepts the version of the State, the mere fact that the accused’s version is rejected would be a clear indication of his corrupt intention.

Why would the accused not have explained his receipt of the money?

The accused cannot rely on the intention of the corruptor – it is the accused’s intention which is an element of the charge.

4.5 Agliotti has not once denied that he gave the accused large sums of cash.

In anticipation that his credibility would be attacked, we argue that more than sufficient corroboration can be found in the evidence of Dianne Muller, Martin Flint and the circumstantial evidence of the accused’s spending patterns and clear laundering of South African Rand into foreign currency.

The concept “corroboration” has been described in SPP v Kilbourne 1973 ALLER 440 at 447H as:

“The word ‘corroboration’ is not a technical term of art but a dictionary word bearing its ordinary meaning”

And at 463 A-B:

“corroboration is therefore nothing other than evidence which ‘confirms‘or ‘supports‘or ‘strengthens‘other evidence… It is, in short, evidence which renders other evidence more probable.

If so, there is no essential difference between, on the one hand, corroboration and, on the other hand, ‘supporting evidence‘…”

See also S v Gentle 2005 (1) SACR (SCA) at 430j to 431c

4.6 A study of the timeline (annexure 1) would indicate that the accused started his “house repairs” in March 2004, received his first payment from the Spring Lights account on or about 14 June 2004 and then after the completion of the “house repairs” surprisingly used cash to pay his Grays account in October 2005 to the amount of R 25 000.

The last payments towards “house repairs” were on 15 September 2005.

Exhibit CC pg 177

4.7 The accused is charged with contraventions of Section 4(1)(a) of the Prevention and Combating of Corrupt Activities Act, No 12 of 2004 (PCCA)

In our respectful view the PCCA is clear, it deals with a person who “accepts or agrees or offer to accept…..”

4.8 The PCCA makes a clear distinction between the corruptor and corruptee and does not require any agreement between the parties,

4.9 Our courts have found, in interpreting the common law crime of bribery that “it is not correct to say that the receiver of a gift can only be convicted if there is also proof of the guilty intent of the giver of the gift.”

S v Gouws 1975(1) SA 1 A

4.10 We have found support for our argument in the work Snyman CR, Criminal Law, Fifth Edition, pg 420.

“In the definition in the 2004 Act the legislature requires nowhere that Y should have known what X’s intention of knowledge or even motive was… The rule of interpretation that required an act to be construed as far as possible in the light of the common law, can also serve to support the view…”

S v Shaik and Others 2007(1) SACR 247 SCA

It is, however, our argument that there was in fact an agreement between the accused and Agliotti. You pay me, I attend the meetings that you need me to attend and I do what I can to protect you against investigation.

4.11 The fact that Agliotti never viewed the agreement or reasons for paying the accused vast sums of money as corruption does not detract from this fact.

Agliotti made it clear that he paid the accused:

“I made payments to the accused because firstly, we were friends; secondly I needed him in my business dealings. I made payments to him and needed him close to me.

Why? – I needed him for my, for purposes of the Kebbles and that is why I paid him.

And you received things in return from him – Sure, I mean he, you know, and it is in my affidavit, in my handwriting notes that he did help me with three (3) reports or showed me three (3) reports.”

Record: pg 237 lines 6-14

4.12 During cross-examination Agliotti made it clear that:

“In my view he was my friend, so if I called him he would come along initially to meetings. Thereafter, if it is deemed that he had to come because of monies given to him, and you know I did not personally perceive it like that.”

Record: pg 297 lines 7-11

4.13 Agliotti made it clear that he needed the accused to attend meetings and that the latter did so.

“No, not my perception but he obviously did, when I phoned him he attended dinners or meetings.”

Record: pg 297 lines 18-19

The accused, during his evidence, surprisingly gave a version of an independent policeman demanding meetings with:

1) Tidmarsh and

2) The Kebbles

Record: pg 2517 lines 3-21

These versions about the meetings were never put to any of the State witnesses. It clearly amounted to a changed version to thwart the inference that he was delivered to meetings by Agliotti and attended meetings as a quid pro quo for the money received.

This was clearly an afterthought, subsequent to the Section 174 arguments, and will be discussed in more detail infra.

We respectfully submit that even the accused realized that his unconditional attendance of meetings at the request of the corruptor could only be explained as quid pro quo. That is why he changed the reason for the Eyhab Jumean meeting as well.

The question that begs answering is why, during his evidence, the accused would change the reasons for all the mentioned meetings.

5. PAYMENTS

5.1 Corruption is by nature collusive and difficult to detect. In general, corrupt payments would be concealed and inter-personal or social contact avoided in order to prevent suspicion and detection.

5.2 The accused, a policeman, with a definite appreciation that he could be the target of many a shrewd corrupter, ensured that his own bank account did not reveal transactions regarding unexplained money, would not deposit unexplained money into his account.

His bizarre evidence that he “would have thought about taking money” was quickly qualified to explain that he would not have taken money for nothing.

Record: pg 3017 lines 7-8

He would have realized that:

“He is trying to buy my favour or to do something if he offered me a large amount of money…….? – Yes”

Record: pg 3018 lines 8-10

5.3 The accused, an appalling witness who changed his versions and became argumentative if confronted, gave the court a glimpse into the defenses that he had created for himself during his corrupt relationship with Agliotti.

5.3.1 The August 2003 video served no other purpose but that of his “help-u-card”. In the event that he was confronted by anyone he would be able to demonstrate that Agliotti not only denied that he paid him, but also that Agliotti was not to be believed but rather, a person who relied on “name dropping” in order to convincingly defraud others and enrich himself.

This must have been the perfect defence in the accused’s mind. No one would believe Agliotti that he gave me money after his recorded denial.

This was the main reason why the accused was at pains to explain why he would continue his relationship with Agliotti (turned it into handler/source relationship) and why he would agree to meet with the Kebbles (changed the meeting into an investigation of a complaint). Why did he not confront Agliotti about the dreadful lies?

This “help-u –card” was in fact used to show Pikoli what a person Agliotti is.

5.3.2 The accused thought that he could explain all his cash by arguing that he sold foreign currency and that he ate extremely frugally, during his trips abroad, so as to enable him to lay claim to his daily allowance as an income for himself.

As with the rest of his evidence the general version that he had currency on hand, failed scrutiny. The accused was lost for any plausible explanation when the slightest of specifics called for an explanation.

5.4 The strongest direct evidence on the payments must be the

evidence of the handover of the R 110 000 on or about 20

December 2004.

It is our respectful submission that Dianne Muller was a remarkable witness. Although the defence would be able to point out certain differences between her version and that of Agliotti, those deal with details of an event that happened five years prior to them giving evidence and cannot, with respect, cast any doubt on the clear evidence that she packed the money, took it to the boardroom and witnessed how it was “handed” to the accused.

5.5 It is the State’s argument that the court would have been more suspicious if their versions were exactly the same.

Why would they contradict each other if they have any intention to falsely incriminate the accused?

5.6 It is trite law that the trial court itself is best placed to judge the credibility of witnesses.

Diane Muller’s clear and direct confrontation of the accused when his version was put to her, was a clear indication of disbelief, disappointment and even anger that he would put to her a version that was clearly a lie.

Record: pg 1146 lines11-12

Pg 1146 lines 17-19

We can do no better than refer to Nokes, An Introduction to Evidence, 4 Ed (1967) at 449:

“the blush of a witness is as real as the dried blood-stain on a knife.”

5.7 Equally strong must be the unexplained sale of US $2 500 on 28 May 2005 on the accused’s return from Cyprus.

Record: pg 2926 line 20- pg 2931 line 25

Exhibit C5 page 763 Annexure “Y”

Exhibit 78 page 1430-1433 in C7

He failed to explain how he got hold of the dollars as he only received € 700 for the trip.

The accused acted out of character by selling the dollars at OR Tambo airport. Why would he do so? Why would he not sell his surplus Euros at the same time? Why would he not follow his usual pattern of having Eunice Grove settle the claim?

An answer to all these questions lies in the fact that Agliotti received US $ 100 000 from Rautenbach on 22 April 2005. On his evidence he handed a total of US $ 30 000 to the accused on 3 occasions. A payment of US $ 10 000 to the accused at the airport is included in one of these occasions.

Record: pg 86 lines 6-14

The accused had dollars to sell and failed to explain to the court where he obtained the currency. The only reasonable inference must be that the accused sold the dollars he had received from Agliotti.

5.8 More sinister and a clear indication of his unexplained excess cash must be the accused’s strange behavior in relation to his trips to France over the period 05 to 10 June 2005 and to Angola over the period 31 July 2005 to 06 August 2005.

Before this is discussed in detail, the court is reminded of the timeline indicating that the accused received R 310 000 in December 2004, R 55 000 on 12 April 2005 and US $ 30 000 between 22 April 2005 and June 2005 (Tidmarsh meeting).

On the State’s version the accused had illicit cash available and needed a way to legitimize his fortune.

Unfortunately for the accused, his secretary, Eunice Grove, could not assist him in explaining why he would buy € 1 490 to the value of R 13 064.15 on an advance of R 8 537.17 for the trip to France between 05 and 10 June 2005.

Record: pg 3137 lines 12-14

He bought € 1 490 Euro at a rand value of R 13 064.15 on 03 June 2005.

He sold € 680 at a rand value of R 5193.90 on 28 June 2005.

Record: pg 2945 line 11 to pg 2947 line 22

Exhibit C6: pg 1262-1273

5.9 Even more incredulous must be the purchase of US $ 3 152 at a rand value of R 21 796.65 whilst he only received an advance of R 8 954.81.

He bought US $ 3 152 at a rand value of R 21 796.65 on 28 July 2005.

Record: pg 2837 line 15

pg 2945 line 8

Exhibit C6: pg 1333-1334

He sold US $ 2 237 at a rand value of R 14 020-70 on 19 August 2005.

Record: pg 2938

pg 2939

pg 2943

pg 2944

5.10 Although the accused testified to having cash available from the sale of currency to make a payment on his Grays account on 16 October 2005 he failed the test of scrutiny to explain:

5.10.1. why he would buy € 1 000 on 11 August 2005 just to sell it again on 1 September 2005 and

Record: pg 3059 line 18 to pg 3060 line 10

Exhibit C5: pg 763 Annexure “Y”

5.10.2. from where he had obtained the € 2 000 from that he sold on 3 September 2005.

Record: pg 3062 lines 10-22

Exhibit C5: pg 763 Annexure “Y”

This is a clear indication of the accused’s belief that vague

generalizations could explain his conduct.

There were no further trips abroad during August 2005, after his return on 5 August 2005, and there is no indication that he had bought and had € 2 000 available to sell in September 2005.

Record: pg 3100 line 1-3

The only reasonable inference can only be that he laundered the cash received from Agliotti into Euro and then back into Rand. The accused was in fact careful to take steps in an attempt to “create” an apparent source for his cash.

5.11 A significant dilemma for the defence is that there is no indication in the accused’s bank account of how he accessed the cash needed to buy more currency and/or to pay at least his Grays account. The obvious explanation that presents itself is the R 30 000 cash he had received from Agliotti on or about 28 September 2005.

The accused, who on his own account required cash for monthly household expenditure, pocket money and clothes for two studying children, holidays for his wife and even to pay, on occasions, his monthly municipal bill, issued no cash cheques in 2005. It is however significant that he issued cash cheques to the value of R36 048 in 2004. He had enough cash from Agliotti in 2005.

It is our understanding that the accused, who had an average monthly income of R 35 000 (circa 2003, 2004 and 2005) is in agreement that he needed cash to make ends meet. It is his version that he did not access his accounts but, instead, that he had cash available as a result of what he had saved from the daily Subsistence and Travel allowances from his trips.

The State has shown, beyond any doubt, that he not only may have used the cash he legally obtained but had access to “unexplainable” cash. In our view the cash he received from Agliotti.

5.12. The accused’s shifting versions culminated in his evidence that his wife had shredded the receipts whilst he was giving evidence. This was in response to him being challenged on his access to the receipts and that he had concocted the version.

Record: pg 1146 lines 11-12

pg 1146 lines 17-19

5.13. The court, with respect, has no option but to reject the accused’s version that he was a co-author of Exhibit H6.

He was afforded the opportunity to continue with his version, put to Friedman, that he relied on his wife as far as his private expenditure and finances were concerned but made it quite clear that:

“Okay. So then you must tell me, so you would know what went on in the household finances? – I would know”

Record: pg 2870 line 5-11

“Mr Selebi, are you, I put it to you that the evidence you are giving is clearly what you heard from your wife… - You are wrong”

Record: pg 2872 lines 2-5

The State would be able to point out various contradictions and improbabilities relating to H6 but the most devastating evidence can be found in the accused’s appalling misunderstanding/lie about the “aggregate” amounts indicated on H6. He was convinced that the aggregate on page 2 of H6, referred to cash at hand.

Record: pg 2968 line 25 – pg 2969 line13

He was equally convinced that the R62 919.00 aggregate on H6 page 1 indicated “… It means money that was available. In? – Cash”

Record: pg 2969 lines 14-21

Even more shockingly he indicated that the “aggregate of R 34 187.23” on H6 page 2 referred to “….. Cash as a result of cheques….- That is what I am saying”

Record: pg 2969 lines 23-24

pg 2970 line s1-4

He had a similar version for the “aggregate of R 39 888.55” on H6 page 3. He was quite certain that “….. in May you cashed cheques to the value of R39 888.55 – Yes, that is what that says”

Record: pg 2970 lines 18-25

The accused persisted with his lies even after he was confronted with the table in Exhibit C1 page 44 indicating what those figures in fact represented.

Record: pg 2974 lines 6-25

pg 2975 lines 1-16

The accused went so far as to agree that the similarity in figures “…. Must be one huge coincidence, is it not Mr Selebi? - Yes”

Record: pg 2975 lines 1-16

5.14 If the court rejects the accused’s version about the compilation of Exhibit H6 it leaves the accused with the predicament that the only finding would be that he deliberately set out to create a version to explain the unexplainable- the amount of cash at hand and the drops in expenditure from his accounts.

This in effect leaves the court without a credible version from the accused but with circumstantial documentary evidence corroborating the version of Agliotti.

5.15 KPMG in their report gave the accused all the benefit of the doubt. They found, in the accused’s favour, that he had all cash withdrawals and sales of currency available during the slump in expenditure from his account.

Not only is it farfetched to think that someone would continuously withdraw money for purposes of “potting up”, especially in the absence of a legitimate reason for this conduct. However, the accused rejected this possibility in his evidence.

Record: pg 2898 line 21- pg 2899 line 19

The accused was quite clear that:

“… in July I had no cash available, so I went to the ATM and I drew R 2 000.00 to buy groceries. Am I right – Yes”

Record: pg 2898 lines 22-23

“Otherwise ….. you did not have cash in June, you had to draw… - Yes”

Record: pg 2898 lines 24-25

5.16 Although there was an indication that the accused’s wife would testify, the accused’s lies made it difficult for her to testify.

This created the dilemma that the court would not be able to take into account that the accused had his wife’s alleged business profit available to feed his cash hunger.

It should, however, be mentioned that the accused changed his version regarding his wife’s business. In his evidence-in-chief at page 2309 line 7:

“What type of business was she doing? – Buying linen and blankets….

And selling it afterwards? – Ja, it was not a big thing.

Was it not very lucrative? - Even me I would say that”

In H6 he indicated that she made profit of R13500 over a period of 8 months.

5.17 The accused’s version of the payments/financial issues was fraught with contradictions and improbabilities. To avoid duplication of the record in the heads we well merely mention a few:

5.17.1 The R16 000 cash cheque in April 2005.

Record: pg 2832 lines 17-25

pg 2835 lines 1-12

5.17.2 If he consulted the KPMG report in preparing H6

Record: pg 2862 lines 9-20

pg 2890 lines 1-23

pg 2892 line 4-25

pg 2893 line 1-17

pg 2989 lines 3-13

pg 2991 lines 10-20

5.17.3 Gifts register

Record: pg 2863 line 24-25

pg 2864 line 1-25

pg 2865 line 1-25

5.17.4 Payment to Tshwane with cheque 459 which never went through his bank account.

Exhibit C5: Annexure L1 pg 758-759

Record: pg 2872 line 6 – pg 2874 line 20

pg 2953 line 1 – pg 2955 line 20

pg 3064 lines 10-13

pg 3058 line 1-23

5.17.5 Availability of receipts. The accused said: “I saw receipts… Spar, from Woolworths and all of these”

Record: pg 2878 lines 10-24

These receipts were allegedly shredded by his wife.

Record: pg 3064 line 15 – pg 3067 line 18

5.17.6 Documents used to compile H6

Record: pg 2883 lines 14-16

pg 2965 line 10 – pg 2966 line 20

pg 2978 lines 1-25

pg 2981 lines 1-5

pg 2983 line 10 – pg 2984 line 14

5.17.7 R 10 000 suit for his son which in fact turned out to be cheque 457 made out to “Style Balustrading”

Record: pg 2902 line 10 – pg 2903 line 23

5.17.8 S&T claims for inland travel and in particular the false version of the signature stamp

Record: pg 2914 lines 10-11

pg 2915 lines 17-18

pg 2916 lines 1-2

He tried to give an explanation for his version but confused an advance payment with a claim for daily allowance.

Record: pg 2920 lines 9-18

5.17.9 Explained the US $ 2 500 by testifying that he got it from Interpol. However he failed to explain why he would simultaneously receive a daily allowance from SAPS.

He gave an answer that his SAPS allowance went back to the SAPS. He used his Interpol allowance.

Record: pg 2928 line 9 – pg 2931 line 20

This version was not corroborated by Taylor. His evidence was that he had no knowledge of what amount and why the accused would receive money from Interpol.

Record: pg 3153 lines 1-11

pg 3162 lines 18-25

pg 3163 lines 1-6

Taylor made it clear that his version was nothing more than hearsay although it was put as a fact in a leading question during re-examination. There could be no doubt as he answered:

“U het dit geweet en U het dit gesien? – Nee ek het nie die geld, ek weet daar was geld gegee want dit is deur José gesê…Dan het hulle gegaan en dan het hulle die geld gegee maar ek weet nie hoeveel was daar gewees nie en wat was gegee nie… ”

Record: pg 3168 lines 8-12

It was however never the accused’s version that he received cash from José or anyone at Interpol without a claim and indicated that Taylor was the man dealing with all claims.

“No this went back with the Taylor to the police. What we used was Interpol allowance.”

Record: pg 2929 lines 20-22

5.17.10 Notes available during compilation of H6.

This version changed from:

“Nobody assisted you? – Nobody else you had no notes or anything, you just, this is something you started doing yourself – No”

Record: pg 2968 lines 18-20

To:

“Okay. So you had your notes as well when you compiled this document? – Yes”

Record: pg 2992 lines 3-4

5.17.11 Contradicts his own document (H6) and cannot explain why he would have included “reasons for no credit card transaction, reasons for no cash withdrawals” if on his version there were in fact cash withdrawals during July 2005.

Record: pg 3012 lines 4-23

6. STATE’S VERSION ON PAYMENTS

6.1 It is not our argument that Agliotti’s evidence is without criticism, rather it is our argument that the court will, with respect, in evaluating the State’s case and the evidence of Agliotti in particular, take the following issues into account:

6.1.1 Agliotti has not once in an affidavit or in his evidence denied that he gave the accused large sums of cash.

6.1.2 He has not in any affidavit, statement and or in evidence-in-chief testified that he “bribed” the accused.

He gave a factual account of payments to and favours received from the accused.

See the quotes in paragraph 4.11 to 4.13

6.1.3 Agliotti provided a factual account in his own handwriting (A21)

Exhibit A21 is the anchor of the golden thread to the State’s case.

This version was confirmed in his affidavit of 11 December 2006 (A33)

6.1.4 This factual account/version was provided to the investigating team before there had been any contact between the team and Agliotti.

6.1.5 Agliotti is not an accused; his intention in handing over of the money cannot assist the accused. There has been no suggestion that there was a fall out or bad blood between Agliotti and the accused which may have motivated Agliotti to create a totally false version about the handing over of cash.

6.1.6 Agliotti first gave a version in December 2006, gave more detail in an affidavit dated 21 November 2007 (A33 page 189 – 227c) which was corroborated by cheques independently identified by KPMG from the Spring Lights Accounts.

6.1.7 Agliotti was only shown and consulted about the cheques, two weeks before the trial.

Record: pg 523 lines 17-20

pg 1739 lines 21-23

6.1.8 The criticism of Agliotti as a witness by the defence is focused on the incidents of 4 and 7 January 2008 and the irrelevant aspect of his understanding of the terms bribery and corruption.

6.1.9 Up until his evidence in court Agliotti has not been asked by the State to make any affidavit without the input and approval of the final document by his legal team.

Record: pg 27 lines 14-17

pg 964 lines 14-18

6.1.10 The State has not shared with Agliotti evidence in its possession which either supported or contradicted his version. We refer to the fact that cheque no. 222 (Exh A10 page 23) was completed and cashed by him.

Record: pg 72 lines 5-9

pg 521 lines 12-15

6.2 He explained his misconception about the term “corruption” not only during his evidence but also in an affidavit before he commenced his evidence. It cannot be argued that he fell back on the excuse that he misunderstood the meaning of corruption during cross-examination.

Exhibit A 41 page A289 – 298

6.2.1 Agliotti explained his understanding of corruption (bribery) on various occasions but he never conceded that he never paid the accused.

Record: pg 432 lines 5-7

pg 500 lines 16-23

pg 520 lines 1-4

pg 609 lines 12-19

6.2.2 His understanding of bribery could be best summarized in his own words:

“That is my view of bribery that he, I never got any tenders awarded and that for me is bribery.”

Record: pg 423 lines 15-16

pg 441 lines 10-13

pg 447 lines 20-23

“Yes because My Lord, my understanding was that I had given the accused gratuity and in law that is bribery I do not…..[intervene]”

Record: pg 451 lines 16-17

6.2.3 Without burdening the heads with direct quotes from the record we refer to instances where the term bribery was used and explained by Agliotti.

Record: pg 481 lines 17-20

pg 684 line 20

pg 856 lines 15-25

pg 860 lines 20-23

pg 862 lines 1-25

6.2.4 During the re-examination he again explained in detail his understanding of corruption and testified about the affidavit in which he explained his understanding of corruption. This affidavit was handed in as Exhibit A41.

Record: pg 890-895

6.2.5 He explained that the accused attended meetings on his request.

That he was confident that the accused would attend.

“And why would he come? – Well to enhance my ability or to help me… it was important for Kebble and other people to know that I was well acquainted with the accused, and therefore he did so”

Record: pg 896 lines 11-14

This is in contrast to the accused’s version that he in fact demanded the meeting to deal with a complaint and his failure to put the “real” version to Agliotti. We argue that Agliotti’s version is probable and the accused’s version of him attending to a complaint by himself so improbable that it cannot be reasonably possibly true.

6.2.6 He explained that he categorized his handwritten notes into payments and reports.

Agliotti, throughout his evidence, maintained that he bought the accused clothes, paid him money and received favours or benefits from the accused. He failed, in his version, to correlate this conduct with corruption but the accused, the most senior policeman in the country and an internationally recognised policeman, must have had, and therefore did have, sufficient insights to recognise that it did amount to corruption. The accused was not only the head of the SAPS but also the head of Interpol.

Record: pg 884 lines 8-25

6.2.7 Agliotti then gave a very good layman’s definition of corruption:

“…that bribery, however big or small the amount of money is, once you give somebody an amount of money and they assist you in any way whatsoever that is deemed bribery.”

Record: pg 886 lines 17-21

6.3 It is of significance to take into account that after the big payments, Cheque 222 (Exhibit A10 pg 23), Cheque 226 (Exhibit A11 pg 24) and Cheque 271 (Exhibit A12 pg 25) there was a marked drop in expenditure.

6.4 The same drop in expenditure occurred after Agliotti received the US $ 100 000 from Rautenbach and the accused had cash available to pay his Grays account after cheque 355 (Exhibit A13 pg 26) was cashed.

6.4.1 The court cannot find that Agliotti and/or the DSO knew of these phenomena in the accused’s spending patterns and fabricated cheques and evidence of payments to support the objective facts of the drop in expenditure.

6.4.2 An even bigger dilemma for the accused is his inability to explain the “laundering” of cash and access to US dollars and Euros as discussed supra.

6.4.3 The accused’s purchases at Grays became bigger and more regular during the time that covers the cheques from Spring Lights and culminated in a purchase of R56 430 on 29 September 2005.

It is irrational for a salaried worker to buy clothes for much more than the value of his monthly wages. What is important is that the accused, who knew good clothes, was unable to give an answer to his suit size and / or explain the size of clothing bought by him. On his evidence he could not explain why and for whom he bought the clothes during September 2005.

It cannot be a coincidence that the accused did this only once and thereafter only bought clothes there again on 30 July 2007.

The only reasonable inference to be drawn from the objective facts is that the accused became accustomed to the payments but realized that the source of the money (Brett Kebble) had been killed and that the proverbial tap would run dry.

6.5 We repeat our arguments during the Section 174 application about the evidence of Rautenbach and wish to summarize that the following would be undisputed:

6.5.1 Agliotti was given US $ 100 000 because he had arranged for the accused to meet with Tidmarsh.

Record: pg 1631 line 25

pg 1632 lines 1-25

pg 1640 lines 20-25

pg 85 lines 19-25

pg 86 lines 1-5

6.5.2 Agliotti received the money on 22 April 2005.

Record: pg 1633 lines 3-20

pg 1650 lines 1-25

pg 1651 lines 1-18

6.6 Agliotti’s version is that a total of US $ 30 000 of the Rautenbach dollars were handed to the accused. This total was reached after three separate instances of cash being handed to the accused.

“The one was at international departures, SAA international departures, which is OR Tambo…. and then on two separate occasions at Masupatsela.”

Record: pg 86 lines 4-18

6.6.1 It is significant that Agliotti made a note in relation to payments- “Always at office 1 at Airport”.

Exhibit: A 21 page 34

6.6.2 The accused in fact flew to Cyprus on 23 May 2005 and on his return inexplicably sold US $ 2 500. He flew to France on 5 June 2005 and inexplicably “laundered” R 5 527.

6.6.3 We respectfully argue that the objective facts and the accused’s inability to explain his conduct provides corroboration for Agliotti’s version about the handover of a portion of the Rautenbach money.

6.7 The State repeats its argument that if the defence would argue that Agliotti was the worst witness who ever testified in a South African court, Dianne Muller must be one of the most impressive witnesses who has ever testified in a South African Court.

6.8 Her evidence was clear:

“…Put R 110 000 into a white bank bag

Mr Nel: Ja… I took it down to the boardroom. Mr Agliotti and Mr Selebi were in the boardroom. I put the bag on the table in front of Mr Agliotti, who put his hands on the bag, slid the bag across the table to Mr Selebi and said, “Here you go my China” or “My Broer” but I am convinced it was, “My China.”

Yes and then? … Mr Selebi looked decidedly uncomfortable with me in the room. He did not touch the bag in my presence… I waved goodbye and Mr Selebi left. He had the bank bag in his possession.”

Record: pg 1062 lines 16-25

pg 1063 lines 1- 2

6.9 She was confronted with different versions from Agliotti, Flint and her own affidavits but remained steadfast and in fact repeated her evidence during cross-examination.

Record: pg 1102 lines 7-22

6.10 After intense cross-examination on the details of what happened five years prior she looked at Adv Cilliers and said:

“It is the truth Mr Cilliers, that is what happened”

Record: pg 1111 lines 2-3

6.11 She has not seen or read any other version of the incident.

Record: pg 1109 lines 11-18

pg 1113 lines 15-23

6.12 Although it was clearly difficult to do, she did not attempt to avoid an answer on her farther’s (Flint) version of events.

Record: pg 1136 lines 1-6

Her answer as to Flint’s version that:

“…I had never suspected that such a high ranking and high-profile person as Selebi…. would compromise himself in such a manner” must have given the court the belief that she was being truthful when she explained that it was his belief and “I think he believes honestly what he believes whether his facts are 100% or not”.

6.13 The court must have taken notice of her responses to, and the way she dealt with the denials, when the accused’s version was put to her.

6.14 She remained unwavering that the accused received money from Agliotti and that Agliotti in fact bought clothes for the accused’s children at FUBU.

Record: pg 1146 lines 7-20

Her version of the Fubu incident is that the accused, his wife and two children met with Agliotti and her outside Fubu.

Agliotti let the two boys buy a quantity of clothes and arranged that he would sort out the bill the following day.

Record: pg 1067 lines 19-25

pg 1068 lines 1-5

The accused failed to call his wife to deny the Fubu incident and/or Agliotti’s version that he had bought and given her a Gucci handbag.

6.15 Muller gave insight into the nature of Flint during her testimony. This should, with respect, be borne in mind when the evidence of Mr Flint is evaluated.

6.15.1 The following are with respect important:

6.15.1.1 The cheques no, 201 (Exhibit A8) and 204 (Exhibit A9) as well as 226 (Exhibit A11) do not refer to any other policeman.

He clearly remembered that Agliotti gave money to a retired policeman at the “old building” and they moved to the new building on 4 June 2004.

Record: pg 1162 lines 11-15

pg 1175 lines 8-25

pg 1176 lines 1-2

pg 1196 line 10-25

pg 1199 lines 16-23

6.15.1.2 His evidence was that he followed Agliotti’s instruction. He would ask for a cheque to be cashed “… it is for COP or it is for Chief or it is for ….”

Record: pg 1200 lines 19-25

pg 1173 lines 15-18

He would then hand the cash to Agliotti.

Record: pg 1166 lines 11-23

6.15.1.3 He could not indicate what COP or C.O.P stood for.

It is however important to take into account that Dianne Muller gave direct evidence about cheque 226 (Exhibit A11). In that instance the court should have no difficulty in finding that COP referred to the accused.

We argue that the only reasonable inference must be that COP and C.O.P referred to the accused. It was Agliotti’s evidence that he handed over the cash to the accused.

We argue that COP and C.O.P can only refer to Chief/Commissioner of Police and that is in fact the inference that Mr Friedman drew. As it is written the only inference to be drawn is that it referred to one entity but three words to describe it.

“Those are obviously terms which applied to Mr. Selebi at the time”

Record: pg 1311 lines 2-3

There is not even a suggestion in the record that it referred to anything else, certainly not in the context of Spring Lights.

6.15.1.4 He was willing to testify that he interpreted JS as referring to John Stratton. He however qualified his view by saying:

“Yes, There are payment of just over R 18 000.00, those are car installments and to that I was referring at that point”

Record: pg 1205 lines 10-11

This evidence clearly excluded John Stratton from receiving the proceeds of cheque 127 (Exhibit A 7)

6.16 It is our respectful submission that the State has proved that the accused received money from Agliotti. Not only is there direct corroboration from Dianne Muller, but Agliotti’s version is corroborated by the circumstantial evidence and the probabilities.

The court, with respect, has no option but to reject the accused’s version that he never received money from Agliotti. If his version is rejected the court will have no option but to make a finding that the accused had no legitimate reason for accepting the money.

This in itself is enough for a conviction on the alternative count of contravening Section 10(a) of the PCCA.

7. The accused’s conduct in not disclosing the receipt of the money, together with the steps he took to hide the origin of the money (laundering), serves as proof of his corrupt intent.

8. The accused however provided various benefits for Agliotti. These unexplainable benefits cannot be viewed as anything but quid pro quo for the money received. On the accused’s version Agliotti was merely a source which cannot explain the following conduct:

8.1 He attended all the meetings Agliotti required him to attend. This with the full knowledge of the content of the August 2003 DVD. He never took steps to have the DVD allegations investigated and did not even confront Agliotti or discuss the allegations with the Kebbles.

8.2 He provided Agliotti with secret/confidential information and by doing so warned him of and protected him against investigation.

9. We will discuss the various incidents against the backdrop of the question regarding why the accused would act in the way he did. Did the receipt of the money (with corrupt intent) make it impossible to refuse Agliotti’s requests? Can it be viewed as anything but quid pro quo?

10. NATIONAL INTELLIGENCE ESTIMATE / EXHIBIT H2 AND H5

If the accused was a bad witness regarding his finances he was nothing but a lying witness with regard to the circumstances surrounding H2.

10.1 It is however significant that even on his own version he had shared a secret document with Agliotti.

Record: pg 2728 lines 21-25

pg 2730 lines 23-24

10.2 The accused, out of the blue, presented a document during his evidence-in-chief and testified that:

“… that is the sort of document. I cannot say today here that this is exactly the document that he saw, but it is a document along these lines he saw”

Record: pg 2348 lines 1-3

“… I showed him the particular document. I am not saying that. I am saying that that information about Kögl is information that was already in my knowledge”

Record: pg 2363 lines 8-15

“…No, I am not saying that I did show him this document…”

Record: pg 2365 lines 1-3

10.3 The next version regarding a document shown to Agliotti was that he was shown a document “… that contained information about peddlers, information peddlers.”

Record: pg 2652 lines 1-11

10.4 The accused’s version developed to the extent that he declassified the document to show Agliotti:

Record: pg 2653 lines 3-8

He further indicated that he had the original declassified document, of the document he had shown Agliotti, at his home.

Record: pg 2654 lines 21-25

pg 2655 lines 1-2

He had never made the document available to his legal team because: “Why would I want to give it to them” and later “Nobody asked me.”

Record: p 2655 lines 1-8

He confirmed the reason for declassification “Are you saying that it was a just cause to declassify a document to show Agliotti?- It was just.”

Record: pg 2658 lines 20-22

10.5 Amazingly the accused then changed his version completely and testified that it was in fact H2 that he declassified and showed Agliotti.

This must be the clearest indication that the accused was intent on misleading the court or had no qualms with lying when it suited him. There could be no reasonable acceptable explanation of why the accused would not indicate when he produced “H2” that he showed Agliotti this document.

Record: pg 2663 lines 1-15

10.6 This change of version can with respect never be explained as confusion. It was a deliberate attempt to mislead the court with generalizations which became difficult to maintain under scrutiny.

10.7 The purpose of the declassification of the document also changed overnight. The new version was that he wanted the document declassified because he wanted to use or present the document at the National Security Council meeting.

Record pg 2674 lines 7-20

An observable fact during the accused’s evidence was that he would change his versions overnight or extended breaks

10.8 The reason for this sudden change of version became obvious when he testified that he never told Mphego that he wanted the document declassified to show it to Agliotti because:

“…he would not allow it…”

Record: pg 2678 lines 17-25

10.9 The accused’s version collapsed spectacularly when he produced the “original declassified document” (H5a)

10.10 This document was clearly not an original document.

Record: pg 2721 lines 8-25

10.11 The “declassification” stamp was a date stamp. The date stamp showed no day of the month; in fact the only inference to be drawn is that the portion of the date had been deliberately omitted.

Record: pg 2731 lines 7 – 25

10.12 The compiler, Mphego, never signed the document.

Record: pg 2732 lines 8-10

pg 2733 line 9

The document purports to have been declassified by the accused alone.

10.13 The letter type and font on portions of H2 and H5 differed. Although the accused agreed that the difference was obvious he could not furnish an explanation therefore.

Record: pg 2734 lines 16-24

pg 2735 lines 22-24

10.14 The accused rightly admitted that the H2 and H5 were not in the same font.

10.15 The accused could not explain how the complete logo was not displayed on the alleged original document but the entire logo appeared on the “copy”.

Record: pg 2737 lines 6-25

pg 2738 lines 7-25

10.16 In the interests of brevity we have decided not to set out all the differences between H2 and H5 but not only is the irresistible inference that a document was created to suit the accused’s version but it was created after Agliotti testified and with the intention to mislead the court. Suffice it to say that H2 is clearly not a copy of H5.

10.17 The court will have to find that “H2” is not a copy of “H5”. Neither is “H5” a copy of “H2”. Neither document is original, which leaves the unanswered question of why the accused would still be in possession of secret documents and where the original document really is. Only the accused can answer these questions. It is his evidence and exhibit. He never did.

11. To avoid overburdening the heads with all the changing of versions and contradictions of himself by the accused and the improbability of his versions, we summarize our arguments as follows:

11.1 If H5 was shown to Agliotti – the accused in fact did share a secret document with him.

11.2 H5 could not have been the document shown as there is clearly no reference to the Kebbles.

To explain this, the accused had to contradict himself. At first

“… How he made the connection between Kögl and Kebble?

Record: pg 2692 lines 22-23

Yes… I do not know how he did”.

Record: pg 2692 line 24

“You never discussed with Agliotti the allegations linking you to the Kebbles?... No I did not discuss”.

Record: pg 2694 lines 6-15

But then when he realized overnight that his version did not make sense he had no problem in contradicting himself.

“…You have agreed yesterday that there is no indication of the word Kebble in paragraph 2 … Yes.

There is just no way that Glenn Agliotti can make an inference from reading this document … About that I told him by word of mouth.”

Record: pg 2749 lines 16-18

pg 2749 lines 19-20

11.3 He wanted to show Agliotti the document because of the spelling of the name Jurgen Kögl.

Record: pg 2750 lines 12-18

pg 2751 lines 1-10

pg 2679 lines 11-22

11.4 The accused was in possession of both documents and inexplicably decided to use H2 during his evidence.

We ask the question why he would not have used H5?

Record: pg 2722 lines 8-25

pg 2723 lines 1-6

If he was in possession of both documents and he made copies before he declassified the document, why can he not explain the differences?

Record: pg 2734 lines 3-4

pg 2737 lines 15-20

pg 2738 lines 1-4

pg 2739 lines 1-10

11.5 The accused’s reasons for declassifying the document are unconvincing and in fact disingenuous.

Record: pg 2739 lines 10-25

pg 2740 line 25

11.6 There was no conceivable reason advanced as to why the document and/or the discussions about the document were never put to Agliotti.

Record: pg 2703 lines 2-24

12. We argue that the court will reject the accused’s version of H5 having been shared with Agliotti. The irresistible inference that the court will make is that the accused, having heard argument during the 174 proceedings realized that on the objective facts and probabilities he was in a predicament, went out of his way to mislead the court.

This, however, leaves the court with the direct evidence of Agliotti and the corroboration to be found on the objective facts.

13. Agliotti testified that he was shown a portion of a document which “the accused…. Indicated that this was a report that went to the President, an intelligence report.”

Record: pg 154 lines 15-20

13.1 This report was identified in Exhibit A21 as “NIA”.

13.2 Having only had a limited opportunity to study the document he captured the essence of what he read:

“I cannot tell you exactly the correct wording of it but it went to the effect that Jurgen Kögl reports that the Kebbles are paying Selebi. Something as I say I cannot tell you the exact wording but that was to the best of knowledge the wording of the sentence.”

Record: pg 154 lines 10-14

14. The court cannot, with respect find that it was either blind luck or a mere coincidence that a highly classified Intelligence report existed containing a segment which was substantially similar in essence to what has been testified to by Agliotti.

15. Kögl testified that he discovered money flowing out of the JCI stable to the accused and that after consultation with Counsel he informed the Minister and the President.

Record: pg 1517 lines 8-25

pg 1518 lines 2-10

15.1 Kögl never made any attempt to testify that he played any role in the compilation and/or inclusion of this information into any Intelligence report.

15.2 It is the State’s case that Kögl’s information, albeit not in his own words, was included in the NIE report. The fact remains that Kögl had voiced certain suspicions at high level and the essence of these suspicions found their way into the NIE.

15.3 More devastating for the accused is that Kögl was never challenged on his version of the discovery of the “persistent allegations of money flowing out of the JCI stable to the Commissioner then.”

Record: pg 1517 lines 15-19

16. The only inference to be drawn is:

16.1 The accused knew or foresaw the possibility that the money he had received originated from the Kebbles and he confronted and warned the middleman, being Agliotti.

16.2 He warned the middle man that the authorities were investigating or at least had received the facts.

16.3 The accused shared the information with other members of the corruption agreement to enable them to take steps to protect both themselves and him. If he did not directly share the information with the other members, then his sharing of the information with Agliotti would have had the same effect.

16.4 The inferences to be drawn are strengthened by the accused’s knowledge of the allegations in the August 2003 DVD.

17. Gilder identified Exhibit G (pg 3-4) as a portion that was included in a draft NIE dated 10 October 2005.

18. It was not disputed that the draft NIE was normally distributed to the participants of the meeting, usually three to four days before the meeting. The pre-meeting distribution permitted the delegates to make copies or to discuss the NIE with their respective superiors.

Record: pg 1848 lines 11-15

18.1 Commissioner Lalla was present at this meeting where the particular passage was discussed. Commissioner Lalla reported directly to the accused at that stage and, in fact, represented the SAPS, of which the accused was the head.

Record: pg 1849 line 4

18.2 The accused elected not to call Lalla, Mphego and or Loyiso Jafta to corroborate his version.

19. Gilder testified and it was not disputed that he had apologized to the accused in writing.

Record: pg 1847 lines 21-25

pg 1848 lines 1-4

19.1 What was however surprising is that the accused testified that he was in possession of the apology but failed to submit it as an exhibit or at least to confront Gilder on the contents of the apology.

Record: pg 2647 lines 10-15

On the probabilities the accused would have asked Lalla about the unexpected apology.

19.2 More devastating for the accused is the evidence by Agliotti that he was informed of this written apology.

Record: pg 155 lines 4-1

19.3 How would he have known about it and why would the accused inform him of his intention to request an apology?

20. The existence of both the report, containing the relevant information, and the written apology is strong corroboration for Agliotti’s version regarding the NIE report.

The accused gave reasons why he wanted to discuss the allegations with Agliotti and it all points to his knowledge of the close relationship between Agliotti and the Kebbles.

Record: pg 2634 lines 15-20

pg 2635 lines 2-10

21. The explanations, for all his lies, are to be found in the direct evidence of Agliotti and the irresistible inferences from the objective facts.

The accused shared a portion of the draft NIE 2005 with Agliotti.

22 The accused realized that his reasons for asking Agliotti who Jurgen Kögl was did not make sense and he consequently resorted to yet another altered version.

In his initial version he indicated that the reason he had shown Agliotti the allegations was because he knew that Dianne Muller and Kögl were involved in business together.

Record: pg 2339 lines 5-9

His subsequent version, however, changed to a discussion with Agliotti because “I though he was part of the Kebbles, he would have known who Kögl was.”

Record: pg 2635 lines 2-10

The accused had to admit that he had lied, but failed to furnish a convincing explanation as to why he had lied.

Record: pg 2643 lines 1-25

pg 2644 lines 1-25

The inescapable inference is that the accused realized the improbability of his version that he wanted Agliotti to tell him who Kögl was. He, because of his position, had available to him the full might of the countries intelligence capacity which included the whole of SAPS Crime Intelligence. He then during court heard of the Kögl \ Muller relationship and immediately changed his version. Again not taking into account that scrutiny would expose the impossibility of his version.

23. EXHIBIT A6

The accused’s version about this particular document changed to such an extent that the inference is irresistible that even on his version the e-mail (A6 pg 16-19) can only have come into his possession by means of an interception.

We argue that the reasons, the accused furnished for disclosure of the documents, are so weak that it cannot be reasonably true. Although he masked his reasons for disclosure, proper scrutiny of the document and the time of disclosure indicate, as the only reasonable inference, that the accused intended to warn Agliotti about a DSO investigation that implicated him.

This can, with respect, only be construed as a quid pro quo. Why would the accused share details of an investigation with Agliotti whilst the Paparas bail application was either pending or in full swing.

Record: pg 2559 lines 18-25

pg 2560 lines 9-12

24 HOW THE VERSIONS CHANGED

24.1 It was not disputed during Agliotti’s evidence that the accused gave him the e-mail (A6 pg 12-19)

24.2 In evidence-in-chief the accused testified that:

“It is indeed clear that Mr O’Sullivan sent the relevant statement of the person referred to as Bill Smith to R Plitt at the NPA Office, is that correct? - That is correct.”

This can only be an admission that A6 pg 16-19 was part of the document that was handed over.

Record: pg 2321 lines 17-19

24.3 The accused explained how a journalist handed over an “envelope full of e-mails” and that “this particular one also came from the batch of e-mails”. He explained that a week or two later he “… spoke to the people that had the documents and asked them to send it to me.”

Record: pg 2416 line 9 – pg 2417 line 15

24.4 The accused then denied having seen A6 pg 16-19 on the day that the envelope was handed over.

Record: pg 2418 lines 6-20

Although Brigadier De Beer testified, she could not shed any light on the content of the documents that were handed over.

24.5 His version was that he received all the documents from Crime Intelligence and decided what he wanted to show Agliotti.

Record: pg 2419 lines 17-25

pg 2420 lines 1-14

24.6 The accused was confronted and asked to supply reasons why he disclosed A6 pg 16-19 to Agliotti.

Record: pg 2423 lines 14-24

These questions lead to the accused explaining who and why he phoned Agliotti during a briefing on the Kebble murder.

Record: pg 2424 lines 7-10

pg 2424 lines 22-25

pg 2425 lines 17-20

He testified that he knew he was sharing information of the Kebble murder with Agliotti.

Record: pg 2432 lines 13-17

He attempted to explain why he gave Agliotti information about Mazibuko.

Record: pg 2433 lines 15-23

pg 2434 lines 1-6

He explained why he shared information pertaining to Nassif with Agliotti, and

Record: pg 2434 lines 6-19

most importantly on a question why paragraph 4 on page 19 would be important to Agliotti, he said:

“It was important to show that his friends or people that are known to him are also spreading false information”

Record: pg 2440 lines 16-24

He eventually conceded that A6 pg 16-19 had nothing to do with Agliotti.

24.7 After the weekend which followed the evidence we have dealt with supra (24.1 – 24.5), the accused changed his version completely and testified that he had not seen A6 pg 16-19 and “If I had not seen it I could not have given it to him.”

Record: pg 2582 lines 10-19

The accused then even questioned the details of the cross-examination on the previous Friday.

Record: pg 2583 line – pg 2585 line 8

24.8 It is our argument that the only reason for this contradiction can be attributed to the accused having been confronted on the basis that A6 pg 16-19 was in fact intercepted.

Record: pg 2584 line 1 – pg 2585 line 6

pg 2587 lines 17-24

pg 2597 lines 18-24

24.9 When confronted with the fact that Agliotti was in possession of the exact fax which had been faxed to his office (including A6 pg 16-19) he conceded that it was highly unlikely that he could have received it from anybody else.

Record: pg 2605 lines 1-23

25. It is our argument that there can, with respect, be no doubt that Agliotti received A6 pg 12-19 from the accused. Agliotti in turn handed it over to Adv Hodes senior and eventually attached it to his 11 December 2006 affidavit.

The accused realized that his version of sharing details about a DSO investigation with Agliotti was weak and sharing of the e-mail inexplicable.

There is no indication in A6 pg 12-15 that O’Sullivan had anything to do with the document and it was never put to Agliotti or Pikoli that the accused received A6 from the media.

Record: pg 2603 lines 16-17

26. The accused contradicted himself by denying that Pikoli ever asked him about the e-mail,

Record: pg 2455 lines 18-21

Only to later admit that there was a discussion about the e-mail.

Record: pg 2455 lines 24-25

27. The court will have no difficulty in rejecting the accused’s version which leaves the following:

27.1 The accused shared details of an investigation, wherein he is implicated, with Agliotti.

27.2 The accused shared information about illegal activities relating to Nassif with Agliotti.

27.3 The accused shared allegations of money handovers to him with Agliotti.

27.4 There is no explanation of how they came into possession of A6. Sally de Beer could not assist. A6 pg 16-19 on his own version was not handed over by the media

27.5 The information was shared during or shortly before the bail application of Paparas. Definitely after his arrest.

27.6 Why would the accused go to all the trouble of summonsing Agliotti to a meeting, on a Saturday morning, in the parking area of a shopping centre to only hand over a document? All this merely for the stated purpose of Agliotti to simply show them to his attorney.

28. The State has not only proved that the accused’s conduct can only be interpreted to be a quid pro quo for the money received but clearly he also had the intention to interfere with an investigation or to defeat or obstruct an investigation into Agliotti and his “friends”.

29. TIDMARSH MEETING

29.1 The clearest indication of the accused’s understanding that he had to assist Agliotti because he owed it to him as a quid pro quo for the money he had received, must be his attendance on the request of Agliotti of the meeting with Tidmarsh. The accused traveled all the way, dressed in full Police uniform, to Sandton and met with the lawyer of a fugitive of Justice and discussed government secrets with him in the presence of Agliotti.

Objectively seen – Agliotti delivered the accused to a meeting. The accused having received all the money was “on call”. He attended all the meetings that Agliotti wanted/needed him to attend.

29.2 Although the accused’s version, during cross-examination, was that he requested the meeting, it was clearly an afterthought to change his version to avoid the inference that the State made during the Section 174 arguments.

The accused’s version during cross-examination was that he “asked Agliotti to arrange a meeting with Tidmarsh”

Record: pg 2371 lines 10-20

pg 2374 lines 3-25

29.3 Agliotti testified that “I requested that the accused meet with Tidmarsh… at Sandton Towers Hotel for a meeting regarding Billy’s problems…”

Record: pg 84 lines 15-25

It was never disputed that Agliotti arranged the meeting and that the accused attended because he requested him to attend. The defence went so far as putting that “… the only difference between your evidence in this regard and my instructions is…that the letter was not handed to him at that stage, you arranged this letter to be handed over and it was in fact handed over at the stage when you and him and Mr. Tidmarsh came together…”

Record: pg 263 lines 1-16

29.4 Although he viewed the meeting as official he had difficulty to explain why he went to the meeting alone and why the meeting was not arranged in his office. He was expecting to receive “evidence” of corruption by Ngcuka.

Record: pg 2375 lines 21-25

pg 2376 lines 1-25

29.5 The accused could not furnish a credible reason why he had not informed the NPA of this meeting, well knowing that the NPA was investigating the Rautenbach matter. SAPS was not the investigative agency involved.

Record: pg 2377 lines 1-25

pg 2378 lines 1-2

At the time of the meeting Pikoli was the National Director of Public Prosecutions.

29.6 It was never put to Agliotti that the accused asked Tidmarsh about the bribery allegations

Record: pg 2382 lines 1-25

pg 2387 line 20 – pg 2388 line 19

On his own version the accused arranged the meeting to pursue the bribery allegations but did not demand a discussion or version about the allegations.

The improbabilities inherent in the accused’s version are the price he is paying for changing his version.

29.7 It is also improbable that the accused after having received exhibit A26, did not follow up with Tidmarsh regarding the response and/or further contact with Ngcuka.

29.8 On the accused’s own version he discussed Government secrets with Tidmarsh. This was totally out of context with the purpose of the meeting and, even more inexplicable, he discussed, in his capacity as the Commissioner of Police the Government’s concerns regarding Ngcuka in the presence of Agliotti.

Record: pg 2390 lines 15-25

29.9 The accused believed that he could get away with a generalized, vague version of the meeting and discussion but in fact his discussion assisted Rautenbach and his team to change their focus to Ngcuka and caused them to include Zimbabwe. They now knew that Government was concerned with Ngcuka and his relationship with Kroll.

29.10 We argue that the court will accept Pikoli’s version that the accused said to him “you guys, why are you not dropping the charges against Billy Rautenbach?”…he then said to me “because I am in possession of a letter that can cause embarrassment to both Ngcuka and the NPA…”

Record: pg 1528 lines 10-20

29.11 If the accused had no interest in Rautenbach and/or the investigation against him, why would he discuss the existence of an international warrant with Agliotti?

Record: pg 2369 lines 10-25

29.12 We have argued supra that Agliotti received money from Rautenbach and handed over US $ 30 000 to the accused.

Agliotti’s evidence makes it clear that the accused assisted him by attending the meeting and giving him information about the warrant. Pikoli’s evidence is clear that the accused suggested that the NPA not proceed with the prosecution against Rautenbach.

This can, with respect, only be viewed as the quid pro quo.

30. THE UK REPORT

30.1 It is the State’s argument and the accused conceded during cross- examination, that Agliotti must have had sight of exhibit A1 to enable him to disclose sufficient details for Commissioner Hankel to identify a confidential report in custody of the SAPS which contained substantially similar information.

Record: pg 2802 lines 10-16

pg 2803 lines 13-23

30.2 Agliotti’s evidence was clear, he was shown a document by the

accused. The accused asked him to read the document and thereafter questioned him about his knowledge and relationship with the names mentioned in the report. The accused then said ”… that I was being monitored or my movements were.”

Record: pg 156 lines 17-157 lines 21

Agliotti testified as to the purpose of the above mentioned meeting:

“… what was the purpose of that meeting…? – well he wanted to make me aware of the fact that the authorities in the UK were monitoring my movements and he told me so.”

Record: pg 158 lines 14-17

30.3 There was never a suggestion made that Agliotti could have gained knowledge through any other means. The document was in the possession of SAPS at all times.

30.4 Although the accused called Hankel a liar, it is our argument that the court will accept Hankel’s evidence that A1 formed part of the Chaser file that was booked out by Capt Thema on 21 April 2006 and never returned.

The accused, however, gave the court insight into his relationship with Thema. No more the Commissioner of SAPS and whilst an accused in a matter in which senior policemen gave evidence he could summons Thema (a State witness) to a meeting to discuss the evidence.

Record: pg 2813 line 1 – pg 2816 line 10

30.5 We submit, with respect, that the accused has failed to give an acceptable explanation as to why he consulted with Thema. He consulted whilst the State was leading evidence. Furthermore, he consulted without informing his legal team.

We argue that the accused has only himself to blame if the court makes the logical, reasonable finding that the accused took the risk to consult with Thema to cover his tracks about the disclosure of A1 to him.

What is, however, very relevant is that the accused changed his version about his involvement in Operation Chaser.

At first the intelligence people “wanted me to retain my relationship”

Record: pg 2334 lines 17-20

and then “I played no role in Chaser.”

Record: pg 2804 lines 7-8

30.6 Agliotti must have had access to A1. It was under the control of SAPS and was placed on the Operation Chaser file which Thema booked out and which he never returned.

The disclosure happened in the middle of 2006 - on our reconstruction of a timeline, just before the e-mail was handed over to Agliotti.

30.7. The accused’s version of a total denial that he ever had sight of this report is with respect so improbable that it cannot be reasonably possibly true.

30.7.1 Pikoli asked him about the UK reports.

Record: pg 1533 lines 15-20

pg 1534 line 21 – pg 1535 line 4

This was not disputed until the accused testified under cross-examination that Pikoli never asked him about the UK reports.

It is significant that Pikoli was never challenged on his version, as the accused’s failure to report back on the UK reports fuelled Pikoli’s suspicions.

30.7.2 He asked senior officers to brief him on any “concrete” Agliotti allegations,

Record: pg 2794 line 4 – pg 2795 line 15

but never enquired why the DSO would want access to UK reports and/or what the content of those reports were.

Record: pg 2799 line 3 – pg 2801 line 18

Without acquiring insight into the UK reports the accused instructed that they should be disclosed. In our view this is not the conduct of a reasonable head of an organization with an obligation to protect secret information. More so, when he was strong enough to say to the Minister of Justice and the Minister of Safety and Security that he was in charge of security in this country and that the DSO would not get any documents from him or his people.

Record: pg 1541 lines 10-15

30.7.3 With respect, the only, inferences to be drawn are that:

30.7.3.1 he intentionally kept distance between himself and the reports, knowing that he had shared a report with Agliotti or

30.7.3.2 He is yet again lying. The last inference would open up a whole argument of exactly why he would by lying about his knowledge of the UK reports.

31. The disclosure of the A1 fits into the timeline of accessibility and more disclosures and we argue that the court will accept Agliotti’s evidence, as corroborated by the circumstantial evidence that the accused disclosed A1 and warned him that he was under investigation.

32. DINNERS AND MEETINGS

32.1. It has been the State’s case that the accused’s receipt of the money from Agliotti made it impossible for him to reject any invitation by Agliotti to a meeting. The accused having received the money corruptly felt obliged to go wherever Agliotti needed him.

32.2. This inference was, with respect, strengthened by the accused’s evidence. More particularly his knowledge of Agliotti’s background and the content of the 2003 DVD (Exh 1).

32.3. The accused in his evidence, referring to the State’s argument about the meetings, attempted to create the impression that it took Agliotti two years to convince him to meet with them.

Record: pg 2298 lines 19-23

He then agreed because he had received and attended to a complaint by the Kebbles.

Record: pg 2299 lines 1-17

As with the Tidmarsh and the Eyhab Jumean meetings, the accused could not explain why Agliotti was never cross-examined on this version that the meetings happened on his request.

32.4. It was never put to Agliotti that the accused either refused to or was reluctant to attend a meeting that he was requested to attend.

It was however Agliotti’s evidence that he tried to prevent a meeting between the accused and the Kebbles.

“Well I did not want them to have easy access to the accused because then they would no longer need me or my services.”

Record: pg 60 lines 15-25

32.5 During cross-examination Agliotti agreed that during the meetings with the Kebbles “you spoke of, on general subjects, politics general aspects, never on money and/or favours and/or anything of that nature.”

Record: pg 294 line 24 – pg 295 line 1

It was made clear: “when it was mentioned to him that the Kebbles have a complaint, the accused did not deal with that himself, he referred it to some of his other people who were in that line of police work.”

Record: pg 297 lines 23-25

32.6 The accused, however, created a reason for the visit other than a request by Agliotti, but then had difficulty in explaining:

32.6.1 Why he would meet with the Kebbles, with knowledge that Agliotti “defrauded” the Kebbles and received money on pretext that it was necessary to pay the accused.

Agliotti never denied having said that to the Kebbles during the Mphego interview. He merely denied that he paid the accused.

32.6.2 Why it was never put to Agliotti that the accused discussed official business with the Kebbles. He on his own version discussed the Kebble’s complaint and that he “explained what I know about it”

Record: pg 2502 lines 11-12

On his own version he discussed the circumstances of the arrest of Roger Kebble with the suspect’s son.

Record: pg 2502 line 16-20

pg 2510 lines 10-22

32.6.3 The court will, with respect, reject the accused’s version as to the reasons for the Kebble meetings and find that the accused, as a quid pro quo, allowed Agliotti to deliver the Commissioner of the South African Police Services to the house of the Kebbles.

32.6.4 There were, however, other meetings that the accused attended on “request” from Agliotti and in fact listened to a complaint about the behavior of a Police reservist. He followed up the complaint and referred it to the Provincial Commissioner of Gauteng.

Record: pg 2514 line 9- pg 2515 line 7

32.6.5 On the State’s version Nassif requested Agliotti to arrange a meeting whereby he could meet with the Head of SAPS to complain about the conduct of a reservist.

Whatever spin the accused has put on the reasons for the meeting; he was present at a hotel, listened to a complaint and sorted it out.

32.6.6 The accused realized that it would be difficult to explain why he attended the meeting and promptly provided a version that he, Nassif, wanted the meeting “to get recognition for the good work they did”

Record: pg 2515 lines 18-21

32.6.6.1 Again this was never put to any of the State witnesses and clearly again an afterthought. The accused had the opportunity to put his version about this particular meeting to both Agliotti and Sanders but elected not to. He could not, because, it was not his version then.

32.6.6.2 The accused however admitted that “I dealt with a complaint that was there”

Record: pg 2517 lines 19-23

32.6.6.3 Agliotti was present at all the meetings, on his version the accused attended on his request. Why would Agliotti have been present at the Eyhab Jumean meeting if it was arranged between Nassif and the accused?

32.3 The accused, without having confronted the State witnesses, changed the nature of all the meetings so as to indicate that he had a legitimate official purpose to attend them all. This we argue, was an afterthought by the accused, to avoid the inference that he was “on call” for Agliotti.

32.4 It is however peculiar that he would deal with complaints outside of the office and office hours and without any assistance from members of SAPS who could have taken the complaints further.

33. FAIR TRIAL

33.1 The defence has indicated their intention to argue that the accused’s rights to a fair trial have been infringed upon.

It is unclear exactly what their arguments will be. The State will respond comprehensively to these allegations if the accused should make out a case that his rights to a fair trial have been infringed upon.

The onus to convince the court that there has been an infringement of such rights rests with the accused.

33.2 We do not anticipate, with the exception of the disclosure of documents, an argument that any of his rights in Section 35 (3) of the Constitution of the Republic of South Africa, Act 108 of 1996 (the Constitution) have been infringed.

33.3 In a desperate attempt to divert attention away from the accused’s evidence and general demeanor as a witness, the defence led evidence that the prosecutor was arrested by SAPS on 8 January 2008. It is unclear if the accused would argue that this incident is relevant to him receiving a fair trial but we will be dealt with in passing.

33.4 It is, however, the State’s case that there has been no infringement of the accused’s rights. The methodology followed, the evidence led, and in particular the timeline of major investigating and intrusive actions, will demonstrate this.

The State refers the court to annexure 3, which will give the court an indication of the time line of the investigation.

33.5 We feel confident that the accused will not argue that the following incidents have been unfair to him:

33.5.1 In August 2003, Commissioner Mphego (then reporting to Commissioner Lalla) confronted and covertly recorded Agliotti with allegations that he had been paying the accused.

Mphego made it clear that he had the “footage” and needed an explanation on the “one point something million to NASCOM...” Agliotti denied that it had anything to do with the accused, but admitted that he was “consulting for” the Kebbles, involved in cigarette smuggling, had information about drugs and even that the accused could be asked about his generosity: “…I am like that you ask people like Jackie, I’m like that I have got a big heart.”

Exhibit 2B page 20 lines 12-14

This DVD was kept until, as they had anticipated, it was needed to prove to Pikoli and McCarthy that Agliotti could not be trusted.

There is no indication that any further steps or investigation was undertaken about the allegations in the video.

33.5.2 The accused had his “help-u-card” available in November/December 2006 when he was confronted with his relationship with Agliotti, but failed to present all the investigations the SAPS had undertaken against Agliotti. Neither the UK reports, nor the Chaser investigation nor the Yester-Garrido investigations were produced.

This would have compromised the accused and his public declaration of “he is my friend, finish and klaar.”

33.5.3 On the accused’s version and according to Exhibits H2 and H5, Mphego, in July 2005, reported to him (without following the line of command) about information peddlers including allegations about himself.

33.5.4 He was also fortunate enough to be briefed about an allegation, included in the draft NIE 2005, about his alleged corrupt receipt of money from the Kebbles.

It is not every suspect in South Africa who will be briefed by the Head of Security in the Presidency.

Record: pg 2647 line 22 - pg 2648 line 15

pg 2625 lines 3-4

33.5.5 On 10 September 2007 a warrant for the accused’s arrest was issued. On 14 September 2007 the Honourable Judge President, Justice Mojapelo, authorized a search warrant for the accused’s house and offices.

On the accused’s version, Exhibit H2 and H5, the file with all the receipts (now allegedly shredded) and the Gilder apology not only existed but were in his possession, therefore a search by the DSO would have led to the discovery of, at least, these documents.

On 23 September 2007, before any of the warrants could be executed, Mr Pikoli was suspended.

Record: pg 1714 lines 1-17

Not only was Pikoli suspended but the warrants had to be handed over to the Acting NDPP who had the arrest warrant cancelled on 27 September 2007.

Record: pg 1714 line 13

33.5.6 During the same time Lalla, Frazer and Jafta consulted with Mrwebi and requested him to assist with a Security Council Investigation. This culminated in Mrwebi submitting an affidavit on 27 September 2007. The accused was, at that stage, a member of the Security Council and Lalla was reporting to him.

Record: pg 3186 lines 20-25

33.5.7 Both Manzini and Frazer from NIA, as well as Mphego, were present in the Hotel room on 4 January 2008 when Exhibit A23 was signed.

Record: pg 218 lines 6-9

The following day, Saturday 5 January 2008, the affidavit was faxed to the offices of Selebi’s legal team where (by inference) they were busy preparing the accused’s urgent application.

As if that was not fortunate enough, Mphego had an interview with Agliotti, again without his legal team, in another Hotel on 7 January 2008. Here “help-you-card number 2” was produced. Although this was explicitly for intelligence purposes and not under oath, the video content will be used by the defence to argue that the accused did not have a fair trial.

This is however not where it ends. During the evening of 8 January 2008 the prosecutor was arrested by SAPS.

The accused filed his papers on the NPA and court on 9 January 2008.

33.5.8 The accused was also fortunate enough to receive the Mrwebi affidavit (Exhibit H 9) and the Leask performance report (Exhibit H4) in time to include it in his papers that were filed on 9 January 2008.

33.6 It is our argument that not only will the accused have to show that there has been an infringement of his rights, but also that it was to such an extent that it rendered the trial unfair and, most importantly, why the accused did not inform the court at plea stage that he felt his right to a fair trial had been infringed upon.

Before the trial started, the accused had all the evidence available that he, in our view, may use to argue that the prosecutor did not prosecute “without fear, favour or prejudice”.

The accused rather elected to rely on an alleged conspiracy by Pikoli and/or Ngcuka to prosecute him as a defence and only when that failed turned his attention to the prosecuting team.

33.7 In anticipation that the accused may repeat his arguments in the Section 174 application we will indicate, with reference to undisputed facts, how the investigation progressed and who played roles in the decision to prosecute the accused (Annexure 4).

33.8 The independence of the prosecution team is evident in the methodology that was followed:

33.8.1 The State never obtained an affidavit from Agliotti without the involvement of his legal team. Other Law Enforcement Agencies, however, obtained affidavits and conducted interviews with Agliotti in the absence of his legal team.

33.8.2 The State consulted with Agliotti only two weeks before the trial commenced. This was never disputed and it was never put to Agliotti that the State (prosecution – or investigation team) at any time attempted to convince him to furnish an untruthful version.

Record: pg 963 lines 1-10

It is Agliotti’s unchallenged version that the initiative to approach the prosecution for a “deal” came from him and not the State.

Record: pg 19 lines 21-25

pg 20 lines 1-5

33.8.3 All affidavits obtained from Muller and Flint were either drafted by Counsel or checked by their lawyers before being commissioned.

Record: pg 1074 lines 1-25

pg 1075 lines 1-20

pg 1084 lines 1-25

pg 1085 lines 1-13

pg 1168 lines 12-25

pg 1169 lines 1-25

pg 1170 lines 1-25

pg 1171 lines 1-25

pg 1172 lines 1-11

pg 1187 lines 14-25

pg 1188 – pg 1194 line 17

pg 1737 lines 4-19

33.8.4 Agliotti was given access to the cheques and cheque stubs only during consultation in preparation for this trial. Before he gave evidence, the State did not require of him to amend clear mistakes in his affidavit.

He was not shown the extract from the NIE report before and/or during his evidence.

“We did not want anyone, or found ourselves in a position that it could be said we had suggested to him any answers or suggested any information”

Record: pg 1712 lines 4-12

33.8.5 The conspiracy – or malicious prosecution defence was never fully canvassed with Pikoli and or Leask.

Pikoli and the NPA executive took the final decision to prosecute. The defence elected not to confront Pikoli about any unfair or untoward conduct by the investigation- and/or prosecution team that may have affected his decision.

Record: pg 1544 line 21 – pg 1546 line 17

The final decision to prosecute the accused was also made in consultation with independent Counsel namely, Adv Cockerell.

Record: pg 1546 line 22 – pg 1547 line 3

pg 1713 lines 7-25

33.8.6 With the suspension of Adv Pikoli the then Acting NDPP, Adv Mpshe, appointed an independent panel of experts to review the evidence, the indictment and the legitimacy of the decision to prosecute.

The four members of the panel were experts in their field, supported by years of experience. They endorsed the decision that had already been taken that the accused be prosecuted.

Record: pg 1714 lines 21-25

pg 1715 lines 1-2

33.8.7 The State prepared and presented Flint’s evidence, albeit that the evidence contained a version which contradicted it’s case. This was explained and rectified during his evidence.

33.8.8 The accused filed his papers and relied on Agliotti’s affidavit to support his application.

Thereafter, the State, again through Agliotti’s legal team, obtained an affidavit (10 January 2008, Exhibit A37) in which the 4 January 2008 affidavit was put into perspective.

The “allegations” were explained by Agliotti in his evidence-in-chief from page 221 to 223.

These “explanations” could be summarized as a combination of what he heard from Kebble and his own inferences and perceptions.

He indicated that he implicated Gerrie Nel and his team because:

“I want, I honestly believed that NIA wanted to hear that because as far as what I was told not by them directly, was that they really did not particularly like you people”

Record: pg 227 lines 14-17

pg 230 lines 1-10

pg 231 lines 15-25

It is however significant that Agliotti never once, with the exception of the August 2003 interview, denied that he paid the accused.

33.8.9 It was never denied that up until his arrest, on 16 November 2006, Agliotti ever had contact with the DSO.

Record: pg 960 lines 14-20

33.8.10 The accused had strong views on the absorption of the DSO within the SAPS. The accused even discussed his views with the President.

Record: pg 961 lines 3-13

pg 2574 lines 16-25

pg 2262 lines 20-25

pg 2263 lines 1-11

pg 2264 lines 1-7

33.8.11 Agliotti’s intention with the 7 January 2008 meeting was the same as with his 4 January 2008 meeting.

33.8.12 Agliotti has explained why he said certain things on 4 January 2008 and the repetition on 7 January 2008 cannot change the fact that the “facts” were perceptions and/or inferences.

Record: pg 980 lines 10-25

pg 986 lines 4-10

pg 986 lines 18-23

pg 988 lines 20-25

33.8.13 The accused cannot rely on a generalized unsubstantiated perception that the prosecution displayed unacceptable bias towards him.

The accused, in his Section 174 application, relied on Agliotti’s perception of the “motive” for the investigation.

If the motive of an investigation and/or prosecution is to expose and use the facts that would prove the Head of the SAPS’ corrupt relationship with the criminal underworld – that would certainly not render a legal investigation and/or prosecution unfair.

In NDPP v Zuma [2009] JOL 22795 SCA, the Honourable Harms DP remarked:

[37]”…a prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if in addition reasonable and probable grounds for prosecution are absent … The motive behind the prosecution is irrelevant...”

The court will, with respect, demand proof of ‘facts’ that indicate mala fides.

To rely on an indication that the investigation and/or prosecution is unfair, the belief of Agliotti and his friends that:

“So it was clear to everyone that this was politically motivated and driven”

Record: pg 991 lines 22-23

or

“Because their whole motive was to arrest Selebi discredit him and that is it”

Exhibit 1B: pg 12 lines 14-16

can, with respect never be enough.

The accused must provide “evidence” of unfair behaviour, as the court, as a trier of fact, will make findings and reach conclusions on its own and not rely on the conclusions of Agliotti.

33.9 The accused cannot, with respect, provide the court with credible evidence indicating that the State caused false evidence to be obtained or convinced witnesses to change their versions or provide a version that would have benefited the State.

To make this finding the court will have to find that all the attorneys and advocates who played a role in drafting and submitting affidavits were willing to compromise their clients and themselves.

33.10 We have dealt with the Ngcuka/Pikoli conspiracy and argue that an understanding of the timeline of events would indicate that the conspiracy to focus on the accused to ensure the continued existence of the DSO is so improbable that it cannot possibly be true.

33.10.1 The Khampepe Commission completed its sittings and findings in 2005. It recommended the continued existence of the DSO as a business unit of the NPA.

Leask made the DSO’s position clear:

“… the Khampepe Commision had already taken place and that there was clarity on our placement and the future way in which the two organizations were to work”

Record: pg 1721 line 25 – pg 1722 line 16

33.10.2 Kebble was killed on 27 September 2005.

33.10.3 The DPP for Gauteng wrote a letter (Exhibit A29) and had a meeting at the end of January 2006 with Pikoli to request the assistance of the DSO in the investigation of the Kebble murder.

Record: pg 1529 line 4 – pg 1531 line 13

The accused confirmed his behavior which caused the SAPS to request assistance. He telephoned one of the suspects (Agliotti) during a police briefing on the Kebble murder.

Record: pg 2427 lines 18-19

33.10.4 The investigation was authorized in March 2006.

Record: pg 1531 lines 14-16

33.10.5 Nassif signed an affidavit in November 2006 and this affidavit is discussed with and shown to President Mbeki.

Record: pg 1532 lines 11-25

33.10.6 Flowing from the above mentioned meeting and on 11 November 2006 the accused and Pikoli met at the NPA Head Office.

Record: pg 1533 lines 9-14

33.10.7 Agliotti was arrested for the murder of Kebble on 16 November 2006.

Record: pg 1536 lines 8-9

Since then there has been no communication between the accused and Agliotti or any indication that the accused took steps to find out why and on what facts his “source or friend” had been arrested.

33.10.8 The interview between the accused and McCarthy took place on 23 November 2006.

Record: pg 1536 line 25

pg 1537 lines 1-5

There has been no indication that the accused mentioned to anyone that he believed the investigation was mala fides or that he knew it was because of Ngcuka or Pikoli’s corrupt activities.

33.10.9 The (investigating) team briefed the Minister of Justice “in terms of progress in the matter and this was arranged for 25 June 2007.”

Record: pg 1545 lines 16-21

33.10.10 On 25 July 2007 the DSO management met.

Record: pg 1751 lines 2-7

At that time, unbeknown to the members at the meeting the Minister had been briefed.

33.10.11 A month later, during August 2007, the decision to prosecute was taken.

Record: pg 1546 lines 10-25

pg 1547 lines 1-7

33.10.12 Pikoli was suspended on 23 September 2007.

Record: pg 1525 lines18-25

33.10.13 In his papers filed on 9 January 2008 the accused is silent on the Pikoli “conspiracy”.

This is of utmost importance because the investigation was authorized and the decision taken to prosecute by- and in the time that Pikoli was the NDPP.

33.11 The defence called Adv Mrwebi whose evidence was according to us, totally irrelevant. The following was, however, interesting:

33.11.1 He cannot explain how his affidavit, which he provided in a top secret investigation found its way to the accused.

Record: pg 3186 line 20 – pg 3187 line 8

pg 3194 lines 10-20

It is still unclear how the accused got hold of this affidavit.

33.11.2 The meetings with Mrwebi were initiated by “a person who at the time introduced himself as from the Office of the President.”

Record: pg 3178 lines 10-13

Later he met with Frazer, Lalla and Jafta in this regard.

Record: pg 3194 lines 21-25

pg 3195 lines 1-7

Mr Jafta, from the Office of the President, is the same person that shared the “controversial paragraph” in the NIE 2005 with the accused.

Lalla represented the SAPS at the NICOC meeting where the draft NIE 2005 report was discussed.

Record: pg 1849 lines 1-4

Frazer was present at the 4 and 7 January meetings with Agliotti.

Record: pg 218 lines 6-9

pg 2620 lines 11-20

33.11.3 The management meeting of 25 July 2007 followed the ANC Policy Conference held on 18 June 2007 in Midrand. There was a suggestion at this conference to disband the DSO.

This could clearly not have been the reason for the investigation against the accused. The investigation had commenced more than a year earlier.

33.11.4 There were no decisions taken regarding any investigations that were discussed. “…McCarthy said, top management will take a final decision as to what is going to happen, what decision is going to happen in relation to these matters.”

Record: pg 3203 lines 9-12

33.11.5 He knew very little of the investigation against the accused. However, he had divergent views on how one should deal with high profile investigations and who should be involved in such investigations.

Record: pg 3204 lines 3-17

pg 3196 line 14 – pg 3198 line 22

33.12 Even less relevant, except if the intention was to show that the prosecutor had been investigated and even arrested previously, is the evidence of Mokotedi.

33.12.1 He was intent on portraying Nel as having been implicated in a C-Funds investigation and demonstrated this early in his evidence.

Record: pg 3216 line 22 – pg 3217 line 1

He, however, neglected to testify in chief that someone (other) than Nel was arrested and appeared in court in the matter in which he implicated Nel.

Record: pg 3233 lines 1-11

33.12.2 In our respectful view, his total lack of objectivity and his bias towards the defence became clear in his evidence, on page 3221, about the interview with the source who “indicated among other things that he had committed two murders.”

The evidence during cross-examination about this interview sheds a total different light on the incident. Especially taking into account that early on in his evidence, when cross-examined about a possible police investigation, he failed to indicate who actually contacted him and was present during the interview and answered:

“I do not know whether the police were investigating those murders at the time…”

Record: pg 3277 lines 21-25

He later had to admit that a very senior policeman, Comm. Mmutle in fact contacted him and was present when they interviewed the source who was also a policeman. This evidence in fact proves that the DSO did not concern itself with obtaining evidence against the accused at all cost.

The accuse himself led evidence that policemen made allegations that he (the accused) was involved in criminality relating to drugs.

Record: pg 3230 line 11 – pg 3231 line 25

33.12.3 He testified that the C-Funds incidents happened in 2004.

Record: pg 3226 lines 20-25

The evidence before court is that Ledwaba was suspended in relation to the C-Funds investigation in June 2005 and is currently on trial.

Record: pg 3208 lines 9-20

He handed all his reports to the SAPS who investigated the C-Funds allegations.

Record: pg 3229 lines 10-14

The defence has failed to indicate how the evidence could be relevant to the accused’s case. It does not, with respect, explain any payments and or favours or does not even deal with any incident mentioned in the indictment.

It does not assist the accused in his version that he was the subject of a “malicious prosecution” because of his view on the location of the DSO.

33.12.4 During re-examination in answer to a leading question he testified that Nel was arrested in 2007. The witness clearly did not know when Nel was arrested.

Then again in answer to a leading question the witness answered that Nel’s arrest related to the issues “dealt with this morning.”

Record: pg 3235 lines 4-6

It was put to Mokotedi, again in a leading question and against the evidence on record, that he was involved in the investigation.

Record: pg 3235 line 10

This was contradictory and misleading because he had to concede that the matter that Nel was arrested on “… did not relate to C-Funds?... That did not relate to C-Funds.”

Record: pg 3236 lines 10-14

The record will illustrate that Mokotedi was over eager to answer “yes” to all questions implicating Nel and similarly the defence to lead evidence on the integrity of the prosecutor. We would be surprised if the defence would go so far as to argue that mere allegation and investigations against the prosecutor would disqualify him from prosecuting any matter.

The accused remained the Commissioner of Police even after he appeared in court on corruption charges.

33.13 In a desperate attempt to divert attention away from the accused’s poor performance in the witness stand and the inevitable rejection of his evidence as a deliberate well worked out lie, the accused, as a last resort, had to attack the integrity of the prosecutor.

33.14 It is a misinterpretation of the case law, quoted in their heads on the Section 174 application, to equate the independence and fairness required from a prosecutor with his personality and /or allegations of impropriety, but with the way he conducts himself in presenting the particular case to court. The court will enquire into the way he conducts himself in preparing and presenting the particular matter in court.

33.15 We argue that the attack on the prosecutor cannot assist the accused in his defence or even in an argument about fair trial.

The Constitutional Court has identified a tendency and the Honourable Harms D.P remarked in National Director of Public Prosecution v David Cunningham King (86/09) [2010] ZASCA 8 (8 March 2010):

“[5]…Courts should further be aware that persons facing serious charges – and especially minimum sentences …One can add the tendency of such accused instead of confronting the charge, of attacking the prosecution”

34. DISCLOSURE OF DOCUMENTS

34.1 The accused’s desperation does not stop with the attack on the integrity of the prosecutor but, as was predicted during the argument on postponement, argues that the State acted unconstitutionally by not disclosing necessary information to him.

34.2 Again the onus to prove a breach of a constitutional right rests on the accused. This may have been a relevant argument if the accused did not abandon an order in his favour in terms of Section 35(3) of the Constitution.

It is unclear whether the accused will persist in his arguments but we argue the following in anticipation thereof:

34.2.1 During the application for postponement on 14 April 2009 we argued:

“Accused present willingness to proceed with the trial without a document is no guarantee that he will not at a later stage during the trial demand access thereto, or use the failure of the State to provide the documents as an argument that his trial has been unfair”

Record: pg 17 lines 19-24

34.2.2 Initially the accused argued that he will not have a fair trial without access to all the requested documents which included all the Spring Lights cheques and cheque stubs.

The accused however elected to proceed:

“All he says is I am entitled to those documents, this court found that, but I am willing and able to proceed, with great respect, to destroy the State’s case without these documents and I prefer to go ahead with that matter indeed.”

Record: pg 62 lines 22-25

pg 63 lines 1-3

34.2.3 The accused formally abandoned the court order in his favour on 30 April 2009. On his behalf it was argued:

“That is his choice M’Lord. He is an educated man. It is an informed decision that he took.”

Record: pg 105 lines 5-8

The accused argued on 4 May 2009 that:

“We are perfectly ready to start. If your lordship makes an order that we start now, we can start with the trial.”

Record: pg 113 lines 22-25

34.3 It is disingenuous to now claim that the State failed in “their constitutional duty to provide the defence with all the necessary information…” as was done in the Section 174 application

The accused is “an educated” man represented by Senior Counsel and took an informed decision to proceed with trial and even argued that;

“Nothing precludes the State to keep on investigating and/or to keep on obtaining further information and documentation.”

Record: pg 116 lines 24-25

Only to now complain that he has been denied a fair trial.

With respect to the court, the accused killed the parrot and is now complaining because the parrot is dead.

35. COUNT 2- DEFEATING THE ADMINISTRATION OF JUSTICE

35.1. The indictment reads that”the accused is guilty of the crime of Defeating or Obstructing the Administration of Justice.”

35.2. The accused has admitted that premature sharing of the facts of an investigation with the suspect will prejudice the investigation.

Record: pg 2415 lines 18-23

35.3. In the work “Criminal Law, Fifth Edition” by C. R. Snyman: Criminal Law Fifth Edition, the crime is defined on page 338 as:

“…unlawfully and intentionally engaging in conduct which defeats or obstructs the course or administration of justice.”

35.4. The sharing of a statement made in connection with a matter in which the person, with whom the statement is shared, is a suspect cannot be anything other than obstructing an investigation.

The sharing of Exhibit A6 with Agliotti, after the arrest of Paparas, cannot, with respect, be viewed as anything but obstructing the investigation either against Agliotti or Paparas or both.

This inference becomes even more irresistible on the accused’s version that he only showed Exhibit A6 pages 12 to 16 to Agliotti. On his version there is no indication that Paul O’ Sullivan played any role.

35.5. We have argued that the court will find that the accused shared Exhibit A1 with Agliotti. There could, with respect, be no other inference but that the intention was to warn Agliotti of this investigation and that his movements were being monitored.

We respectfully argue that the court will have no difficulty in finding that the intention was to defeat or obstruct the course of the investigation.

Snyman (supra) at paragraph 7 page 341 explains:

“It is not a requirement for the crime that the conduct allegedly constituting it should have been committed in relation to a specific pending case. It is, in fact, not even necessary that a court case be envisaged by the Police…at the time of X’s conduct.”

35.6. The accused’s conduct in allowing a distortion of the facts in the Kya Sands matter had the effect that the SAPS not only paid an exorbitant reward to Stemmet but also clearly lead to false information being provided to motivate the claim.

It is clear from the motivation of the claim that the investigator/handler was not in possession of the actual facts at hand during the Kya Sands operation.

The mere fact that Agliotti was never consulted or interviewed regarding his role in the Kya Sands matter is a clear indication that it was never disclosed that he had received a request from Madam Chen to arrange for the transportation of the drugs.

What could have been easier than to file an affidavit by Agliotti and to arrest the brain behind the Kya Sands drugs?

35.7. We repeat our argument regarding the disclosure of Exhibits H2, H5 and the draft NIE 2005.

If the court finds that the accused shared the draft NIE 2005 with Agliotti or accepts the accused’s version that he shared Exhibit H2 (a secret document) with Agliotti and explained to him that it relates to the Kebbles, then the court will have, with respect, no option but to convict the accused on Count 2.

The only inference possible is that the accused warned Agliotti of a pending investigation wherein he himself was implicated.

35.8. We respectfully submit that the State has proven the accused’s guilt on Count 2, beyond any doubt.

36. CONCLUSION

We argue that the State has proven beyond a reasonable doubt that the accused contravened Section 4(1) (a) of the Prevention and Combating of Corrupt Activities Act, 12 of 2004, and is guilty of corruption.

We argue that the State has proven beyond any reasonable doubt that the accused defeated and/or obstructed the Administration of Justice.

Signed on this 21st day of May 2010.

G. NEL

A. JOHNSON