Jackie Selebi’s recusal application

IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG

 (REPUBLIC OF SOUTH AFRICA)

 CASE NO: 25/2009

 In the recusal application of:

 J S SELEBI

IN RE S V SELEBI

FOUNDING AFFIDAVIT

I, the undersigned,
 

JACOB SELLO SELEBI

do hereby state under oath as follows:

1.1             I am an adult person and was the National Commissioner of the South African Police Services appointed in terms of Section 6 of the South African Police Service Act, Act 68 of 1995 (“Police Act”) and in accordance with Section 216(2)(a) of the Constitution, Act 108 of 1996 (“Constitution”).  My contract has come to an end during July 2009 and was not renewed.

1.2             The facts contained in this affidavit fall within my personal knowledge unless stated to the contrary and are both true and correct. 

1.3             I am the Applicant in this application.

NATURE OF THIS APPLICATION:

I wish to state at the outset that this is a difficult instruction that I gave my legal team to bring on my behalf and that everything that I say herein under is said with respect to the Honourable Court and the Judicial System of our Country.

This is an application for the recusal of the Honourable Joffe J (hereinafter referred to as the “Honourable Presiding Judge”) as Presiding Judge in the criminal trial against me in this Honourable Court. 

1.  The basis for the application is briefly the following:

 4.1             Certain events that occurred during the trial since the 5^th of October 2009, as well as previous events that occurred during applications for postponement by the Prosecution, created a clear apprehension and perception with me that the Honourable Presiding Judge is biased against me. My impression is that he has, despite the fact that the credibility of the main state witness against me has already been seriously impaired during cross-examination, already decided, probably unconsciously, even before the trial has started, that I am guilty of the charges referred to in the charge sheet. 

4.2             I further wish to state that this perception developed over a period of time and it was not one single incident that finally led to my instruction to my legal team to proceed with this application. 

  BACKGROUND: 

1.  

I was charged in the Magistrate’s Court of Randburg on the 1^st of February 2008 on one charge of corruption and one charge of defeating the ends of justice that allegedly occurred during the period 2000 to end of 2005.  A number of alternative charges to the main charges were also contained in the charge sheet.

 The case against me was postponed to the 26^th of June 2008.

On the 26^th of June 2008 the matter was postponed for trial to this Honourable Court to commence on the 14^th of April 2009.  It was estimated that the trial would run for 6 months as from 14 April 2009 and arrangements were made with the Deputy Judge President of this Honourable Court well in advance to accommodate a trial of that length as from this date.

My Defence team encountered insurmountable problems with the Prosecution in the preparation of this trial.  This led to inter alia the following:

8.1             The application for postponement by the Prosecutinon the 26^th of June 2008 was opposed on the basis that the Prosecution refused and/or neglected to provide the Defence with relevant information necessary for the preparation in this matter.  Numerous express undertakings by the Prosecution in this regard had been reneged on.  

8.2             The Prosecution refused to provide proper further particulars when requested to do so and that led to an application in this Honourable Court before the Honourable Coetzee J on the 18^th to 20^th of February 2009.  

8.3             On the 20^th of February 2009 Coetzee J ordered the State to provide the further and better particulars as requested by the Defence. 

8.4             I instructed my legal team to bring an application for the committal of inter alia Mr. Nel, the Prosecutor in this case and the Acting National Director of Public Prosecutions for their failure to comply with the above Order.

8.5             The Prosecution subsequently filed an Application for Leave to Appeal against the judgment and order of the Honourable Coetzee J referred to above, which application was refused on 6 March 2009.

8.6             My legal team brought an Application in terms of Rule 49(11) of the Uniform Rules to compel the State to provide the further and better particulars as ordered. 

8.7             The Honourable Coetzee J refused the Rule 49(11) Application on the same day when he refused the Application for Leave to Appeal by the Prosecution.

8.8             The Prosecution indicated, at that stage, that they intended to file an application to the President of the Supreme Court of Appeal for Leave to Appeal.  At that stage my senior Counsel put on record that I will probably abandon the Court Order of the Honourable Coetzee J in order to ensure that the trial against me proceed on the 14^th of April 2009.  

8.9             A few days after the appearance, my Attorney indicated to the Prosecution that I am indeed willing to abandon the abovementioned Order in order to ensure that the trial proceeds.

8.10        The Prosecution formally requested a postponement on the 14^th of April 2009.  I may mention that the Application for Postponement was vehemently opposed on my behalf.

8.11        The matter was postponed to the 4^th of May 2009.  On the 4^th of May 2009 the Prosecution again requested a lengthy postponement of at least 6 months.  Although the postponement application was again vehemently opposed on my behalf, the case was postponed to the 5^th of October 2009.

MEDIA CAMPAIGN /FAIR TRIAL

Since the first allegations in the press against me during early 2006 there had been an unprecedented smear campaign in the media against me, to the extent that I had serious doubts if it would be possible for me to have a fair trial.

I was always worried whether any Court, after having read the allegations against me in the press, would have the ability to completely separate the true facts from the false allegations in the smear campaign.  That of course would have a serious bearing on evaluation of evidence and the credibility of witnesses.

11.  My legal team, although sharing this concern, persuaded me not to raise these issues as it would delay the start of the trial and it was my clear instructions that they should insist in finalising the trial as soon as possible.

12.  My legal team expressed the view and believed that the Honourable Presiding Judge would be able to remain impartial and objective.   I further did not want to create the impression that I was looking for a reason not to proceed with the trial.

GROUNDS FOR THIS APPLICATION:

13.  As indicated, my apprehension and perception that the Honourable Presiding Judge is biased, arose from facts and considerations that originated over a period of time since the 14^th of April 2009 when the first Application for Postponement was heard by this Honourable Court.

 Proceedings on 14 April 2009:

 14.  As indicated above the matter was set down for trial as from the 14^th of April 2009.   On this day, however, the Prosecution formally requested a postponement.  I instructed my legal team to formally oppose the Application for Postponement and a lengthy and detailed affidavit was filed on my behalf opposing the Application for Postponement.

 15.  Very material to the opposition to the postponement was the fact that I stated in my opposing affidavit that the investigating team, including the present Prosecutor, Mr. Nel, was part of a conspiracy to defame me and  to institute a malicious prosecution against me for purposes, inter alia, of ensuring the continued existence of the Directorate of Special Operations (“DSO”).  I all along stated categorically that I was targeted in this prosecution to tarnish my reputation as National Commissioner of the SAPS inter alia to ensure the continued existence of the DSO.  Nel referred to it as follows in his address for the postponement on 14 April 2009:

 “The accused M’Lord, in his answering papers makes the allegation that the investigating team is part of a conspiracy to defame him or to prosecute him for purposes of saving the DSO.  Therefore he was targeted and he was prosecuted, so that society could think that there should be place for the DSO because who else would do that.  That is one of the aspects that he mentioned.”

 I annex a copy of the relevant part of the Court proceedings hereto as Annexure “JS1”: (P. 49 of the Record.)

 16.    Mr Nel summarised the Prosecution’s allegations in their replying affidavit as follows:

 “So M’Lord we also make it clear that the investigating and prosecution team has never been part of any conspiracy to defame or prosecute the accused for any other reason than acting on the letter written by the director of public prosecutions in Johannesburg to the national director requesting assistance.  That is how this investigation started in January 2006, and we make it clear M’Lord, in our replying papers paragraph 16.”

 I refer to the relevant part of the Court proceedings annexed hereto as Annexure “JS1”

 17.  The Honourable Presiding Judge clearly decided, already at that stage, and based on the affidavits, that I was not to be believed when stating under oath that the prosecution against me was instituted with an ulterior motive.  The Honourable Presiding Judge clearly accepted the denial of the prosecution and the say-so of Mr. Nel during his address in this regard.  The Honourable Presiding Judge expressed the following view:

 “COURT:  Just bear one thing in mind, I am sure the decision to prosecute a commissioner of police was not take lightly.

          MR NEL:   It was not.

COURT:   So there must have been the embryo of something at that stage.”

 I annex a copy of the relevant part of the Court proceedings hereto as Annexure “JS2”: (P 89 of the Record)

 18.  In his address Mr. Nel levelled the accusation against me that I just wanted to proceed with the trial because of the fact that I was aware of the difficulties that he investigating and prosecuting team had in obtaining affidavits from members of SAPS.   He made the following submission:

 “M’Lord then the question would be but why would the accused just want to carry on with the trial today, because M’Lord the accused is well aware of the difficulties in obtaining Affidavits from members of the South African Police Services, which would not be a problem, and therefore knowing that we are not ready, knowing that we have not had full opportunity to investigate this case to its fullest because of the non-cooperation he would like to get us in court to force the State to carry on with what we have now well knowing, having been briefed, having heard that we are not ready, and it is not because of our own doing it is because of the difficulties we have.  That is why the accused would be very keen to proceed with the trial.”

 I annex a copy of the relevant part of the Court proceedings hereto as Annexure “JS3”( P. 54 of the Record.)

 19.  The above submission was absolutely devoid of all truth and it was indicated in my answering affidavit to the Application for Postponement in detail that I have put pressure on the Prosecution since January 2008 to proceed with the trial without delay.  I have inter alia stated the following under oath:

 19.1        In the Application to the High Court of South Africa, North Gauteng Division in January 2008, I accused the Prosecution that they delay the proceedings deliberately with an ulterior motive.  They stated that they were ready for trial already at that stage.

 19.2        In June 2008 in the Magistrate’s Court of Randburg my Counsel specifically opposed the Application for Postponement on the basis that the Prosecution deliberately attempt to delay the proceedings.  They again assured the Court that they were ready to proceed already at that stage.

 19.3        In February 2009, in this Honourable Court before the Honourable Coetzee J, it was emphasised that my instructions were that we have to proceed with the trial on the 14^th of April 2009, and that I, already at that stage, indicated that I would even abandon the Order in my favour to ensure that we proceed with the trial on the 14^th of April 2009.

 19.4        In a number of letters that were annexed to my opposing affidavit, addressed to the Prosecution, it was stated to the Prosecution that we held the view that they were again trying to delay the proceedings and we stated further that any attempt to request a further postponement would be vigorously opposed.  They throughout assured us that they were ready for trial at that stage.

 20.  Despite the fact that I explained my stance under oath in detail in the opposing affidavit, the Honourable Presiding Judge made startling remarks to my Counsel suggesting that the reason why I want to abandon the Court Order in my favour and wish to proceed with the trial was because of the fact that the Prosecution indicated that they were not ready.  The following remarks are referred to:

“MR CILLIERS:   But what he says M’Lord, under oath, he sais(sic) I am an educated man.  I have been advised by a full legal team.  I accept their advise and wish to state that I am willing to proceed with this trial without the documentation.

COURT:   Well of course that would not have been the case had the trial proceeded today.

MR CILLIERS:   Or that would have been the position if the trial proceeded.

COURT:   No, then you would have wanted the documents before the trial proceeded today.

MR CILLIERS:   Why do you say that M’Lord?”

I annex a copy of the relevant part of the Court proceedings hereto as Annexure “JS4”and “JS5” 🙁 P. 63 – 64 of the Record.)

21.  This was a clear indication that the Honourable Presiding Judge accepted Mr. Nel’s allegations that I have an ulterior motive for demanding that the case be proceeded with, and that he rejected my statement under oath.

 22.  It therefore appears that this Honourable Presiding Judge already rejected my version as set out under oath in the opposing affidavit.  This Honourable Presiding Judge therefore already made a credibility finding against me and accepted the version put forward by the Prosecution in this regard.

 23.  The above issue became extremely material when the video recording of the Prosecution’s main witness showed Mr. Agliotti explaining in some detail the conversation that he had with Mr. Nel and Leask that confirmed my version in all material respects, in this regard.  I will deal in more detail with this issue hereinafter.

 24.  In my opposing affidavit to the postponement I have set out the facts that clearly indicated that the Prosecution’s basis for the postponement was indeed not true.  They heavily relied on the fact that they did not get the necessary cooperation from SAPS and therefore had to postpone the matter.  The Honourable Presiding Judge clearly rejected my evidence as set out in the opposing affidavit and accepted the version on behalf of the Prosecution.   The Honourable Presiding Judge remarked as follows:

“COURT:   I have heard exactly what you have said, and I have read the papers.  I have also never come across a case where the prosecuting authority does not have the support of the police services. It is the strangest phenomena that I have ever seen where a subpoena has to be served on the South African Police Services.

MR CILLIERS:   No M’Lord but let me explain that, if that is … [intervenes].

COURT:   It is not a thing of daily occurrence.  You normally would find that they would be working in the closest cooperation, and here you find that the arms of government seem to be working in different directions.”

 I annex a copy of the relevant part of the Court proceedings hereto as Annexure “JS6”🙁 P 86 of the Record.)

 This was despite my opposition and the fact that the circumstances did not justify a further postponement. The following circumstances are referred to:

 24.1        The investigations started approximately three and a half years earlier; 

 24.2        The investigation team and prosecution consisted of a large number of very senior  investigators including admitted advocates; 

 24.3        The DSO and National Director of Public Prosecutions assured the State President already in 2007 that they have finalised their investigation; 

 24.4        Already during June 2008, my legal team demanded of the Prosecution to obtain subpoenas against the SAPS for whatever documents might be outstanding.

 24.5        The DSO and NPA assured the High Court in January 2008 in Pretoria that they were ready to proceed with the trial; 

 24.6        Mr Nel, personally assured the Court in Randburg in June 2008 that the Prosecution was ready to proceed with the trial; 

 24.7        In numerous letters, my Attorney of record, was assured since February 2008, that the Prosecution was ready to proceed with the trial.

 Proceedings on 4 May 2009:

 25.  On the 4^th of May 2009 the Prosecution again applied for a further postponement of the case, indicating that they were still not ready to proceed with the trial.  The Application for Postponement was again opposed on my behalf.

 26.  

26.1   During argument, my Counsel was accused by the Honourable Presiding Judge of diverting the attention from the trial unto other extraneous issues:

 “COURT:   So everybody’s attention is diverted from the trial unto this other extraneous issue now.”   

 I annex a copy of the relevant part of the Court proceedings hereto as Annexure “JS7”: (P. 113 of the Record.)

 26.2        The above accusation was clearly without any foundation.  The position was that my attorney of record wrote to Director General of National Intelligence to have access to information that they might have, that may indicate improper conduct by the DSO in the decision to prosecute me.  This followed after the National Director of Public Prosecutions in a public press release on national television, stated that there was clear evidence of such improper conduct in the DSO/NPA relating to the intended prosecution against President Zuma.  In the release he made certain references to the prosecution against me as well.   On that basis I instructed my attorney of record to obtain the necessary facts in this regard.   

 26.3        It is beyond my understanding on what basis this Honourable Presiding Judge could accuse me, or my legal team, of diverting from the trial onto other extraneous issues in the light of the above.  It appears to me that this Honourable Presiding Judge attempted to assist the Prosecution in their further Application for Postponement by suggesting that I am responsible for the fact that they are not ready to proceed with the trial.

 27.  

27.1   On the same basis as the above, this Honourable Presiding suggested that I was responsible for the fact that the Prosecution did not get classified information.  The following remarks by this Honourable Presiding Judge is significant in this regard:

 “COURT:   Is it correct that classified information had to become declassified?

 MR CILLIERS:   Yes.

COURT:   Is it correct that the only person that could do that was the accused?

MR CILLIERS:   No M’Lord, that is absolutely nonsense.  The accused is on leave.  He has got nothing to do, but I think you misunderstood my learned colleague, ….”

 I annex a copy of the relevant part of the Court proceedings hereto as Annexure “JS8”: (P. 114 – 115 of the Record.)

 27.2   The concerning fact is that there was, at no stage, any suggestion by any party and/or in any of the documentation, that I was the person responsible for the declassification of information at that stage.  To the contrary, it was common cause that I was on leave for more than a year at that stage. Again it is an example where the Honourable Presiding Judge was eager to make a negative inference against me, that I was frustrating the investigation, without any basis therefore.

 28.  At a pre-trial conference before the Honourable Deputy Judge President of this Honourable Court, when it was indicated by the prosecution that they will request a postponement of the matter, Counsel on my behalf indicated to the Honourable Deputy Judge President that any application for postponement would be opposed and requested the Deputy Judge President to keep a Judge available to proceed with the case should the application not be successful or should the matter only be remanded for a couple of weeks. 

29.  The Honourable Deputy Judge President gave my legal team the assurance that a Judge would be kept available for the period envisaged for the trial (6 months) and indeed confirmed the above in writing.  A copy of this letter dated the 13^th of March 2009 is annexed hereto as Annexure “JS9”.

 30.  Despite the above, this Honourable Presiding Judge, indicated on the 4^th of May 2009 that there was no Judge available and that the matter had to be postponed for at least 5 months until the 5^th of October 2009 to have a Judge available for the trial and thereby acceded to the Prosecution’s request for a postponement.

 31.  

31.1        During the week prior to the trial starting, when it came to my knowledge that the Trial Judge would be the Honourable Presiding Judge, I raised my concern with my legal team that I believed that the Honourable Presiding Judge displayed bias against me during the postponement previous applications and that he had in fact made credibility findings against me and had rejected my defence regarding the improper conduct and malicious and ulterior motive of the Prosecution. 

 31.2        My Counsel persuaded me that a Judge should be able to divorce his/her mind from such previous proceedings. I accepted the advise at that stage, and I also wanted to proceed with the trial in order to finalise it without further delay.

 31.3        What further transpired during the trial, as set out in this affidavit, however, convinced me, and I say this with respect, that the Honourable Presiding Judge has indeed displayed a negative mindset.  I believe that the Honourable Presiding Judge has accepted, probably subconsciously, that I am guilty, even before evidence has been led, probably because of the unprecedented media campaign over the years against me. This was exacerbated by the address of the Prosecution during the postponement proceedings.

Proceedings as from the 5^th of October 2009:

32.   

32.1        Already on the first day of evidence during the trial an issue arose that caused grave concern to me.  The Prosecution handed a bundle of exhibits to the Honourable Presiding Judge as Exhibit A.   This bundle had only been handed up during the evidence and was not provided to the Defence prior to the hearing, despite numerous requests in this regard.  

32.2        When leading the evidence of the first witness, Mr. Agliotti, Mr. Nel referred to certain exhibits that were included in the bundle.  Counsel on my behalf became concerned, as it appeared that certain of those exhibits were clearly inadmissible, as it had been excluded specifically by the Prosecution as relevant to the trial.  The Prosecution denied my legal team access to those documentation and stated under oath that the documents were irrelevant for purposes of the trial.   It appeared that the Prosecution, in a very untoward manner, attempted to sneak evidential material into the record that they previously refused to disclose to me and my legal team. 

32.3        My Counsel requested a brief adjournment in order to approach Mr. Nel to get clarity in this regard.  This Honourable Presiding Judge refused the request and asked Mr. Nel whether the documents had been made available to the Defence.  Mr. Nel then clearly realised that his attempt was detected and indicated to the Honourable Presiding Judge that he might be wrong and that he think an adjournment would be in order.  Only then did the Honourable Presiding Judge agree to an adjournment.

                  See:   Record: P. 80, line 13 to P. 81, line 6 

32.4   What disturbed me about the approach of the Honourable Presiding Judge is the following:

32.4.1          Honourable Presiding Judge only agreed to an adjournment when Mr. Nel requested that.   

32.4.2          When Counsel on my behalf indicated that it was not the Defence’s fault that the situation occurred, this Honourable Presiding Judge maintained that the Defence is to be blamed or also to be blamed for the situation because the Defence team could have raised the point with the Prosecution during the luncheon adjournment.  This was, in my view, a completely unfair approach as the bundle had only been made available to the Defence team shortly before lunch and further was quite a voluminous bundle of documents.  

32.5   What was even of more of concern was the fact that this Honourable Presiding Judge did not criticise nor enquire from Nel, when he requested after the adjournment that six of the exhibits should be removed from the bundle, as to how it came about that evidential material that was inadmissible and which the Prosecution denied the Defence access to, was included in the bundle.  This was even more of a concern in view of the fact that I raised in my plea explanation specifically the fact that the Prosecution had an ulterior motive and deliberately conducted themselves in an improper way and manipulated evidence.

33.  

33.1        Shortly thereafter, a further issue arose that caused me serious concern was the Application for Amendment of the charge sheet.  Initially my Counsel objected to evidence led by Mr. Nel regarding incidents outside the ambit of the charge sheet.  The charge sheet limited the relevant period to the end of 2005.   During argument on the objection Mr. Nel applied for an amendment of the charge sheet. 

33.2        In his argument my Counsel requested that the amendment be limited to only provide for the inclusion of the e-mail that the Prosecution intended to rely on.   This Honourable Presiding Judge refused to limit the amendment even though the Prosecution specifically indicated that they only wanted to rely on the fact that the e-mail had been handed to Agliotti during the course of 2006. 

33.3        The effect of this amendment is that the time period relevant to the charge sheet was extended with a year.  Refusal by this Honourable Presiding Judge to at least limit the amendment caused me serious concern for inter alia the following further reasons:

33.3.1          The charge sheet had been handed to me more than a year before the trial started and I concentrated in preparation of my trial only on the period referred to in the charge sheet. 

33.3.2          The charge sheet is extremely vague and the Prosecution rarely gave indications of any dates on which I allegedly received any gratification from Agliotti.  

33.3.3          The extension of the relevant period without limitation can have a very detrimental effect on my case, especially if not limited as requested.   This is even more concerning when one considers that even the Prosecution’s main witness has given testimony of ulterior motives by the Prosecution in my prosecution.  This amendment may further be used by the Prosecution to manipulate further evidence against me without affording me sufficient opportunity to investigate and/or prepare further.

34.  One of my main concerns throughout the proceedings was the clear difference in attitude that the Honourable Presiding Judge had and displayed when dealing with the Prosecutor on the one hand and with my legal Counsel on the other hand.  It was absolutely clear, to me and I am sure to everyone else in Court, that the Honourable Presiding Judge displayed a very negative and sometimes almost hostile attitude towards my legal team whereas the Prosecution team were dealt with in the most friendly and accommodating attitude possible.  I wish to further mention that it is not only in what the Honourable Presiding Judge said to the various Counsel that became a worrying factor, but more important, the manner and tone of voice in which the Honourable Presiding Judge spoke, that created a clear impression with me that the Honourable Presiding Judge is biased against me.  I asked, and was assured by my legal team that they had never encountered any problems with the Honourable Presiding Judge prior to this trial. This convinced me that the reason for the Honourable Presiding Judge’s attitude towards my legal team could only be the result of the fact that I am the accused in this matter and/or the negative perception that was created in the Press regarding me, prior to the case and in the applications for postponement.  I will refer to a few incidents in this regard:

 34.1        During cross-examination of Agliotti, my Counsel dealt with an issue that was dealt with in evidence in chief.  We receive a copy of the transcript of the proceedings on an ongoing basis and my Counsel had, during the course of morning, found the specific page number in the transcript where this matter had been dealt with previously.  When he started cross-examining, pertaining to this issue, he wanted to assist the Honourable Presiding Judge by providing the relevant page number.  I am advised that this is actually the duty of Counsel in a Court to assist a Court in this regard and that Courts would normally expect from Counsel to assist in this regard.  The following response of this Honourable Presiding Judge really created and/or confirmed this perception of bias that I had: 

CILLIERS]   …  My Lord if I can assist your lordship with your notes, it …[intervenes].

COURT:  I do not need assistance thank you.  I had it.

MR CILLIERS:   No, you have not got it My Lord.  I am flabbergasted by your remark now.

COURT:   What I have not got?

MR CILLIERS:  I wanted to refer you to the page number of the typed transcript that you will receive, on his evidence-in-chief, that will make it much easier for you.

COURT: I do not need it.  I have a note of his evidence.

MR CILLIERS:   As the court pleases.”

See:   Record: P. 303

I may just add that this response by the Presiding Judge was said in a rude manner to a senior Counsel of this Honourable Court.

34.2        I have already referred to the fact that the Honourable Presiding Judge did not even ask for an explanation why evidential material was placed in the exhibit bundle by the Prosecution, which was inadmissible.  I can only imagine what the Honourable Presiding Judge’s attitude would have been if my legal team conducted themselves in such a manner.

34.3        A further incident that convinced me that this Honourable Presiding Judge did not have a balanced and objective/impartial attitude in its approach towards me and my legal team on the one hand, and the Prosecution on the other hand, was the interaction between the Honourable Presiding Judge and my Counsel when the cross-examination proceeded with reference to the newspaper report that appeared in the City Press of 18 October 2009.  This, with respect, hostile approach of the Honourable Presiding Judge was clear for everybody to see.  I refer to the following in the record:

“MR CILLIERS:   …….. Mr Agliotti what is important to me and I want to comment on that.  From that part, I get the impression that the arrangement for this meeting and/or request for a further meeting came from you?

MR NEL:   My Lord I object.  My Lord this is an evidential objection it is a collateral issue.  If you approach a collateral issue and the witness gives an answer you have to be satisfied with that answer.  The witness answered. ….

MR CILLIERS:   My Lord with great respect credibility is never a collateral issue.  Credibility is the very central issue in this case and this deals with, this creates the basis for arguing in the end of the credibility of the witness that he deliberately misled ……., if Your Lordship wishes me to address you on this issue I will need only a couple of minutes to get Your Lordship ample … [intervenes] 

COURT:   Mr Cilliers I do not need you to address me on this issue, at all on the issue.  You are putting to the witness that there may be a video in which he made this particular statement he has answered that.

MR CILLIERS:   He did not.

COURT:   He has answered that.  He has given an answer to that and he has told you that he has no recollection of those words.  That is what he has said.

MR CILLIERS:   My Lord before he could answer my learned friend jumped up because he does not want the answer and I … [intervenes]

 COURT:   But I have got the answer noted.

MR CILLIERS:   Well My Lord then you should read it to me because I have not heard it my learned friend jumped … [intervenes]

COURT:   Mr Cilliers please just remember that you are addressing me.

 MR CILLIERS:   My Lord I … [intervenes]

COURT:   Just remember that you are addressing me and not the witness or anybody else … [intervenes]

MR CILLIERS:   My Lord I am doing this with the greatest of respect.

COURT:   … and let me finish speaking before you commence speaking.  Mr Cilliers you have the position as follows:  you are putting to the witness a statement that appeared in a newspaper, which alleges it came from him.  The witness says he has no recollection of it.  How much further can you take it than in testing credibility?

MR CILLIERS:   My Lord if you give me the opportunity then I will indicate and say how far … [intervenes]

COURT:   I am asking you to indicate it to me.

See:   Record: P. 655, line 23 to P. 657, line 16

 Again the comments by the Honourable Presiding Judge were indeed rude.

35.  Apart from the fact that, in my view, Counsel did not conduct himself in any disrespectful manner, it appears from the record that the Honourable Presiding Judge was wrong in his approach.   The Prosecution did intervene before the witness could answer the question.

36.  A further issue that caused me grave concern was that the Honourable Presiding Judge was clearly reluctant to allow evidential material that would be prejudicial to the Prosecution’s case.  On the other hand when questions arose on the question whether exhibits or evidence should be allowed that would be to my disadvantage, the Honourable Presiding Judge had no difficulty in allowing such evidential material.  My perception is that the Honourable Presiding Judge, in the vast majority of instances leans over backwards to accommodate the Prosecution in this regard.  

 36.1        I wish to raise the way in which the Honourable Court dealt with the City Press article concerning the alleged third video in this regard.  The significance of the article was that it refers to a video recording where the Prosecution’s most important witness, Mr. Agliotti, apparently had a conversation with a number of other state witnesses.  Mr. Agliotti is quoted to request a further meeting with the state witnesses in order to expand on his allegations against the DSO and the fact that the DSO fabricated a case against me in order to ensure their continued existence.  This video would clearly further destroy any credibility that Mr. Agliotti may have in this case.   I have the following concerns: 

36.1.1          The Honourable Presiding Judge accepted that prima facie such a recording exists.   As already indicated it was clear that such recording was very prejudicial to the Prosecution’s case against me.  

36.1.2          The only concern that the Honourable Presiding Judge raised was that somebody was attempting to influence proceedings in the Court.  I refer to the following:

“COURT:  Mr Cilliers it seems to me prima facie if this video exists and if this video was released by someone or shown by someone to this particular reporter then clearly somebody is releasing information with an intent to influence the proceedings in this Court if that occurred.  We do not know.  I think that the way to make progress, and I will hear Mr Nel, is for you to put to the witness this is a newspaper article where the reporter says the following.  You have not seen the video.  You have no knowledge of the correctness of this article.  You can put what this reporter says and get him to comment.”.

 See:   Record: P; 662, line 9 to 17

 And

 “COURT:   What concerns me beyond anything that you have mentioned is that somebody is trying to influence the proceedings in this trial and that is what is of more concern to me than anything else and they are utilising this newspaper article if this is the only newspaper article in which this appeared to do so. “

(My underlining)

 See:   Record: P. 660, lines 1 to 5

 36.1.3                         What concerned me was the fact that the Honourable Presiding Judge was absolutely not interested in the fact that the cross-examination on this issue could extract the truth from Agliotti and indicate that his previous denial that the video recording of the 7^th of January 2008 was made at his request and insistence, was a blatant lie.   It is common cause that the credibility of Agliotti, as the most important state witness against me, is an issue of the utmost importance in this case.  Throughout the proceedings and the investigation, it became clear to me that the main objective of the DSO and Prosecution was to manipulate evidence against me and to withhold the true facts from the Defence and/or the Court.   In this interaction my perception was that the Honourable Presiding Judge assisted the Prosecution in this regard. 

 36.1.4                         Despite the fact that Counsel on my behalf indicated to the Honourable Presiding Judge that the importance of the newspaper article was that it may be of assistance to get to the truth of the matter, it was clear that this played no role with the Honourable Presiding Judge:

 MR CILLIERS:   My Lord I am more concerned of the fact that a video exist that may further relate to the credibility of this witness as to why and how it came known to a reporter.  I am only concerned My Lord at this stage with doing the case for my client.  So with great respect I do not care how it came about that the reporter saw it.  What is important for me because it is important for my client is an indication that Mr Agliotti again misled Your Lordship in a very material way and that we may have objective proof of that.”

 See:   Record: P. 661, line 4 to 11

 36.2   Even, though the Honourable Presiding Judge then indicated that my Counsel will be allowed to put comments of the report to the witness and get a reply from the witness, the Honourable Presiding Judge intervened shortly thereafter and stopped my Counsel from proceeding.  My perception was that the Honourable Presiding Judge intervened when it appeared that the witness encountered serious difficulties to respond to further cross-examination in this regard.  I refer to the following in the record:

 “COURT:   Yes well I am going to allow Mr Cilliers to put to the witness as I have said to you put the comment of the reporter and then give a reply and take it from there.”

 See:   Record: P. 664, lines 1 to 3

 And

 “MR CILLIERS: …………………..  ‘Glenn I do not want to see you without your lawyer and you know I record people.  I am going to bring Hollywood cameras so make sure your lawyer is here.’

What is your comment on that?  —  If I could recall that Mr Cilliers I surely would have attended with my attorney or asked my attorney and it was made clear on the meeting of the 7^th that I have reserved my rights and I wanted legal advice which he had no problem with.  So I am saying if I recall this or had recalled this I would have taken that up with my legal counsel over the weekend and I had two days in which to do that.  So I cannot answer that I am not Commissioner Mphego and he must answer that.

Is it indeed possible that that is what Mr Mphego told you on 4 January 2008 Mr Agliotti?  —  I cannot recall that Mr Cilliers and I am not being difficult please do not misread me.  I am not being difficult I cannot recall that.

Is it possible or do you deny that he told you that?  —  I am not denying anything I am just saying I cannot recall that.

COURT:   I do not think you can push that any further than that.  The witness says he cannot recall and that is where it is.

MR CILLIERS:   Well and he does not deny it My Lord.

COURT:   He says he cannot recall having made the statement.

MR CILLIERS:   And that you deny it Mr Agliotti not so?  —  I am just saying I do not recall Commissioner Mphego making that statement firstly and secondly I cannot just recall that he made that statement.

Further Mr Agliotti the next column the second paragraph.

COURT:   I am sorry, I am sorry this is now on a different level.  This is now the reporter’s interpretation of what he has seen.  Either you got the reporter who is going to give that evidence or not but you cannot put to the witness that this is what somebody’s interpretation is on what he say.  You can put to the witness what the person says he heard as an accurate depiction of what was said but not the witness’s impression of the witness’s attitude.

MR CILLIERS:   My Lord I do not want to argue with Your Lordship if that is your ruling that is your ruling.  If I may just enquire if I am allowed to and with respect what is the difference of what the person saw and what he heard? COURT:   Because this is an impression.  Determining whether the person was enthusiastic or not happy or sad is an impression as opposed to what a person says he or she heard and this is an impression that the witness had and this I am not going to allow.

See:   Record: P. 668, line 17 to P. 670, line 7      

 This is of course of action, in contrast to the approach that the Honourable Presiding Judge followed when the Prosecution led Agliotti in evidence in chief.   On a number of occasions Counsel on my behalf objected to the State referring to and quoting long parts from documents where it was clear that the witness was not the author of, nor had he ever seen these documents.  By way of example I will refer to one of the incidents:

“MR CILLIERS:   My Lord still with respect I have no objection if my learned friend will call a witness to say that the police has indeed received that.  We have statements in that regard.  Of course, the statements also said that the accused never received definitely none of these documents.  He never had it in his possession that is what these witnesses said under oath to him. But still My Lord he may call those witnesses but with great respect what relevance is the speculation of this witness maybe his name appear in some of these documents.  But what is the relevance if the documents are proved My Lord then Your Lordship can look yourself.

COURT:   Yes but he wants the witness to comment on aspects of the letter and if he proves the letter in due course he is entitled to get the witness to comment on aspects of the letter which may advance his case.

MR CILLIERS:  My Lord but on what basis with respect can it advance his case.  It is common cause that the witness has not seen the document because this document is a one pager and he says the document he saw was more than two pages or more.  The information that he said was in the document is definitely not in that document.  So we know as an objective fact that the accused never saw or the witness never saw this document.  So what is the relevance on his comments on the document if it is common cause that he has only seen this document today for the first time or in consultation for the first time that is my difficulty My Lord.

                   COURT:   Thank you.

MR NEL:   My Lord the argument is very difficult to follow.  My response is the following.  The Mr Agliotti gave evidence about his relationship with the head of the South African Police Service.  I will prove that these documents were handed over to the South African Police Service.  We have now proven that this witness received one report.  My Lord the relationship between the two is important.  What was in this document was important the fact that the accused at times must have said it is my friend finish en klaar.  That is important having known as the head of the South African Police Service that these things exist.  My Lord there cannot be an objection if this is proven to exist.  To ask this witness if he agree with what is in here how can it be there My Lord.  There is further document, which there is an incident that happened at the airport in the UK.  It is in the report.  Is there a reason why no steps were ever taken against this accused, this witness.

COURT:   You are going to prove the existence of the receipt of these documents

MR NEL:   Yes indeed.

COURT:   Anything else Mr Cilliers?

MR CILLIERS:   My Lord as I said if there is facts in this letter that my learned friend wants to argue on and Your Lordship accepts the documents as exhibits when the proper witness come and identify it and hand it in properly then he can argue.  He can argue from the document.  All that my objection is based on is the fact that whatever he says of the document is of no relevance because he has never seen this document.

COURT:   Ja I accept that.  I assume the document says that you were in London on this and this date is there any reason why that cannot be put to him?

MR CILLIERS:   No but my learned friend can without having regard to the document he can say have you been in London on a specific date and he says yes on that date and he can hand in his passport.  But he does not have to take him through documents that we know that has never been shown to the witness.  As the Court pleases.

COURT:   Yes the objection is overruled you may proceed.”

See:   Record: P. 166, line 14, to P. 168, line 23  

 Despite the fact that Mr. Nel’s argument was clearly nonsensical and did not address the issue, my concern is the fact that the Honourable Presiding Judge clearly displayed a completely different approach in this regard.  As already indicated my perception is that the Honourable Presiding Judge allows the utmost leniency when any aspect is raised that may prejudice my case but once an issue arise that may favour my case and/or be detrimental to the State witness and/or the Prosecution’s case, the Honourable Presiding Judge follows a very strict approach.    

 37.  It also appeared to me that almost all objections made by Counsel on my behalf, if not all, were overruled by the Honourable Presiding Judge despite the fact that at least a number of such objections had clearly merit.  I am referring to the following examples:

37.1        Agliotti was requested by the Prosecution to draw inferences as to what certain wording on cheque counterfoils meant.  It was common cause that he was not the author of the writing on these cheques and/or counterfoils.  Despite the fact that my Counsel objected to the request by Mr. Nel that the witness should express his opinion as to what such wording meant, the Honourable Presiding Judge just overruled the objection without providing any reasons therefore.  

See:   Record: P. 77, line 15 to P 78, line 23

37.2        With reference to certain clothing items that appeared on Agliotti’s account Mr. Nel asked the following question:

“Now have you ever bought yourself two jackets on the same day?  —  Highly unlikely, not jackets.

The Aigner Polo on that, did you buy that for yourself?  —  No.

There are two jackets, Aigner jackets on that, two size 60s.  Any explanation for that?

MR CILLIERS:   My Lord, clearly he is asking the witness the speculate now.  The witness, it is 60, it his size and he says highly unlikely that I bought it, but he does not exclude the possibility.  Clearly my learned friend want to have the witness now speculate that it was for the accused.

                   ….

                   ….

                   COURT:   Proceed please.

MR NEL:   As the court pleases.  Can we get an answer to that?

MR CILLIERS:   My Lord, may I just ask, is the objection overruled?

COURT:   I would assume that follows by telling counsel to proceed.

MR NEL:   As the court pleases.  You have indicated you bought four suites and that is true?  —  Correct.

Have you bought two jackets, Aigner jackets at the same time?  —  No.

Now if there is two jackets and an Aigner Polo on it, what happened on that?  —  I am sure that I would have bought them for the accused.”

 See:   Record: P. 94, line 1 to P. 95, line 9

 37.3        I have already dealt with the objection against the evidence on the e-mail that I have allegedly handed over to Agliotti during August 2006.  This eventually led to an application for the amendment of the charge sheet which the Honourable Presiding Judge allowed and further refused the limitations requested on my behalf.

 38.  A further issue that raised my concern indicating that the Honourable Presiding Judge indeed assisted the prosecution to exclude evidence from the record that may be prejudicial to the prosecution is the Honourable Presiding Judge’s dealing with the admissibility of the video recording of 7 January 2008.  Mr. Nel objected when my Counsel asked Agliotti whether he had any objection that the Honourable Presiding Judge see the video.  The Honourable Presiding Judge then refused that Agliotti answer the question.  That was of course after Agliotti confirmed that he did not deliberately lie and/or misled anybody in the video recording and that he did not lie in the recording:

 “MR CILLIERS:   Based on that Mr Agliotti, maybe you can assist us, did you approach the meeting with the view to go and deliberately lie and or mislead whomever would be correct?  —  No, not really, no.

It is a vague answer Mr Agliotti, not really.  —  Ja, I am just saying no.  I did not go there with the intention to lie.

As far as you sit there, you have been present and you have seen the recording?  —  Yes.

Have you lied?  —  Not to my recollection of my memory, no.  But I am sure you will find something Mr Cilliers.

No Mr Agliotti I love that.  Mr Agliotti, you will agree with me that he issues that you raised there is of extreme relevance for this case?  —  No doubt, yes.

It may actually be referred to as maybe the most material and significant evidential material in this case.  —  I am sure.

See:   Record: P. 465, lines 1 to 15

And

“MR CILLIERS:   Did I understand you correct, the video lights were put on, you were sort of put in a spotlight situation for a proper recording?  —  Well, it was on when I entered the room, yes.

Have you got any objection that His Lordship see that video?

MR NEL:   As the Court pleases, My Lord may I object.

MR CILLIERS:   My Lord I would first want the witness to give his indication.  If there is legal grounds my learned friend can argue that, but … [intervene]

COURT:   Let me just hear what Mr Nel says.  What is your problem?

MR NEL:   Indeed, I am going to object to the use of that recording and I would like to argue.

COURT:   Irrespective of the consent or … [intervene]

MR NEL:   Irrespective of the consent.

COURT:   Yes?

MR CILLIERS:   Have you got personal objection … [intervene]

COURT:   No, I think let us first hear the legal, let us first hear the objection by the State Mr Cilliers.

MR CILLIERS:   My Lord I would submit it is proper that we know, this witness, whether he in fact consent to that, because that may be a relevant part of the argument.

COURT:   Mr Nel, do you want to hear the answer first or do you want to argue the point first?

MR NEL:   My Lord I would like to argue the point first.  Whatever the answer to that is my argument would be that it is inadmissible to use.

COURT:   I am going to let Mr Nel raise the objection first.  Yes?

 See:   Record: P. 466, line 1 to P. 467, line 7

 Although the Honourable Presiding Judge allowed the viewing of the video recording it was made very clear that it was only a preliminary decision and that the final decision in this regard would be taken in due course.  A matter of concern to me is the fact that the question as to whether the witness himself objected to the viewing of the video recording had been left unanswered and the Honourable Presiding Judge allowed the Prosecution, again, to exclude evidence and/or evidential material that may be relevant to the proper adjudication of this matter.   When the question of admissibility of the video recording would have to be argued at the end of the case, it will have to be done, without an answer to this question that may proof to be material in the end.  

 39.  An issue that also cause me grave concern is the fact that the Honourable Presiding Judge never raised any concerns about Mr. Nel’s position, under circumstances which appears to me to be of such importance that the whole trial may be tainted by the conduct of the DSO and the Prosecution and clearly their conduct have a serious implication on the question of fairness of the trial.   I am referring to the following:

 39.1        I maintained throughout the proceedings that the DSO manipulated evidence against me and fabricated a case in order to ensure their own continued existence.   I have specifically dealt with this issue in great detail in my opposing affidavit to the Application for Postponement on the 14^th of April 2009.  

 39.2        I have also specifically referred to this issue in my plea explanation.  I also referred to the ulterior motive of the then National Directors of Public Prosecutions in this regard. 

 39.3        Agliotti, the main witness of the Prosecution, clearly and unequivocally stated in the video, that the DSO had this ulterior motive to destroy my reputation in order to assist them in their fight for continued existence.   The DSO had manipulated evidence in this regard.

 39.4        Agliotti stated under oath, in evidence before this Honourable Presiding Judge that what he said in the video was true.   I have already referred to this aspect supra.

 39.5        Agliotti further stated in the video that the people who informed him and admitted to this malicious and unlawful conduct were Messrs. Nel and Leask of the DSO.

 39.6        The very same Mr Nel is now the leading Prosecutor against me in this case and Mr Leask is the Chief Investigator attending Court throughout the proceedings assisting Mr Nel.

 39.7        Mr. Nel was at all relevant times the head of the DSO who investigated the case against me and is now the leading prosecutor.

 39.8        I would have expected the Honourable Presiding Judge to at least enquire from Nel whether, in the light of the serious allegations against him and his investigating team ,it would be fit for him to continue as the prosecutor in this trial.

 39.9        As I understood the requirements for a prosecutor, it is expected that he/she would act fairly and without prejudice or ulterior motives against an accused person and be interested only to bring the truth to the Court and that a Court should ensure proper conduct in this regard.

 39.10    By not enquiring about the fitness of Mr.Nel to proceed as prosecutor, it is my perception that the Honourable Presiding Judge has already decided that my defence in this regard is without merit.

 40.  In the same vein, I was perturbed by the fact that the Honourable Presiding Judge never raised a question with Mr Nel on a further issue stemming from the video recording.  In his address to persuade the Honourable Presiding Judge not to allow the video recording as evidence, Mr Nel, on a number of occasions stated categorically that one Commissioner Mphego misled Agliotti into giving an untruthful version:

 “MR NEL:   My Lord it has been made clear by the witness that this affidavit, this interview was as a result of a, for the lack of a better word, as a result of a project, or as a result of an invitation by a police commissioner to a meeting.  …   Because of the lis involved, the fact that you indicated to the witness, this will not be used, we are just talking.  This is not under oath.  This is off the record.  By means of lis, a version … [intervene]

COURT:   By means of?

MR NEL:   Untruthful version, what lis My Lord, but by means of … [intervene]

          COURT:   Lis?

MR NEL:   Ja, perhaps I am not good with Latin, let me say … [intervene]

          COURT:   I thought the lis is the dispute.

MR NEL:   Because of the fact that Mphego indicated to him … [intervene]

          COURT:   So Mphego mislead the witness.

MR NEL:   Yes, mislead.  Because of the fact that he was mislead into a version, this version cannot be used against the witness.”

                  See:   Record: P. 467, line 6 to P. 468, line 9

                   See also:     P. 468, line 20 to 24

                                      P. 469, line 16 to 25

 The above statements of Mr Nel was clearly devoid of truth.   I refer to inter alia the following:

 40.1        When one has regard to the video recording, it is clear that Agliotti was in complete control of the situation and that he in his own words, enthusiastically volunteered all the facts and allegations in the video. 

 40.2        Agliotti himself confirmed under oath in cross-examination that he attended the meeting and participated in the recording voluntarily and enthusiastically and that he did not lie during the conversation that was recorded.  

 40.3        After again viewing the recording Agliotti confirmed that apart from two very minor aspects in the video, he again confirmed the correctness of the factual allegations that he made during the video recording.  

 40.4        Mr Nel’s statement to the Honourable Presiding Judge during argument that Commissioner Mphego misled the witness into providing an untruthful version was therefore clearly untrue.  

 40.5        This conduct of Mr Nel must also be seen against the background of the allegations in the video recording against him personally that I have already dealt with above as well as his conduct during the Application for Postponement on the 14^th of April 2009.   In his address Mr. Nel stated to the Honourable Presiding Judge that the affidavit dated the 4^th of January 2008 was a result of a meeting between Commissioner Mphego and the witness, Mr Agliotti:

 “MR NEL:   Between Agliotti and Commissioner Mphego.  Now M’Lord there was a meeting on 4 January in a hotel room, which resulted to an Affidavit by Mr Agliotti.  That Affidavit was handed or came – let me rather say came into possession of the accused, and was used in his application of January 2008.”

 And

 “COURT:   On that occasion, or thereafter an Affidavit was deposed to by Agliotti. 

MR NEL:   Indeed. 

COURT:   That Affidavit found its way into the accused founding affidavit for his application to Court?

          MR NEL:   Indeed.”

 See:   Annexed as Exhibit “JS10” and “JS11”: Pp. 21 and 22 of transcript

 40.6   This is clearly untrue as Agliotti, on his own version, approached the meeting with a statement already prepared and typed, which he merely, after taking the oath, handed to NIA.

 41.  A further issue that disturbed me was a remark that the Honourable Presiding Judge made during the cross-examination of Agliotti on the issue of the R30 000.00 that he allegedly gave me to sponsor a dinner to lobby votes for my election as President of Interpol.  The importance of the cross-examination was that the witness and the Prosecution relied on Exhibit A20, being a cheque for an amount R30 000.00 dated the 28^th of September 2005 as corroboration for Agliotti’s version.  My Counsel then questioned Agliotti on the basis that the election for the Interpol Presidency took place more than a year prior to the date of the relevant cheque that the Prosecution relied on.  This aspect clearly casted serious doubt on his version in this regard.  At that stage the Honourable Presiding Judge intervened as follows:

“MR CILLIERS”   In all your statements the clear indication is that you have only made one payment of R30 000.00 to the accused.  —  Yes.

That payment, you have made it very clear related to these, the time before he was elected as the president of Interpol?  —  Yes.

Because on your version the money that you gave him, you meant it to be used for a luncheon before the election?  —  That is not right, it is a dinner.

Sorry.  But the gist of the question is the same, you meant it to be used …[Intervene]

COURT:  I think it was after the election.

MR CILLIERS:    No My Lord.

COURT:    It was a celebratory dinner.  There is two aspects to it.  There is one aspect, I am not going to debate it going through the record, but you will find that it was a celebratory dinner and it was a dinner to [Indistinct].  It is raised in two different contexts.

MR CILLIERS:   My Lord, are you referring to his evidence-in-chief?

COURT:   I am referring to what we have heard, but in any event, just put to the witness your version.

MR CILLIERS:    Mr Agliotti, maybe you should clear it up.  I cannot remember that you ever testified in evidence-in-chief that it was a celebratory dinner.  I understood the position to be that the money was to be used for purposes of getting a canvassing for, before the election, for him to get an better opportunity to be elected.  —  That is right, I used the words “lobbying” if …[Intervene]

          Lobbying, yes.  —  Lobbying for it”

          ….

  COURT:   I looked at my notes and my note is the same as what you said the witness said but I have read another statement in regard to the R30 000 but let us just leave it there.  It will either be in the record or it is elsewhere. 

  MR CILLIERS:    Sorry My Lord if you say another statement you mean some statements that we handed up?

  COURT:   I might have glanced at it in a statement that you handed up but I cannot find in my notes that I have made is that it was for the lobbying situation.  But I read elsewhere my recollection is that there was a celebratory dinner after the alleged but I do not think must to it.  .” 

 See:   Record: P. 509, line 2 to P. 510, line 1

Record: P. 510, line 23 to P. 511. line 8

 I am very concerned about the above intervention by the Honourable Presiding Judge for the following reasons.

 41.1        The issue of a “celebratory” dinner was never mentioned by the witness. 

 41.2        The Honourable Presiding Judge must have read about an allegation of a celebratory dinner in another source that did not form part of the Court proceedings.    I may mention that I recall that I have read in the Press some time before the trial started about allegations that Agliotti provided me with money for a celebratory dinner.  

 41.3        It therefore appears that the Honourable Presiding Judge have regard to facts that are clearly wrong and does not form part of the proceedings. Even more concerning is the fact that it appears that the Honourable Presiding Judge attempts to use those facts in order to assist a witness who experience difficulties to explain a material improbability in his version.  

42.1   The Honourable Presiding Judge allowed Mr. Hodes to address him on the question of the admissibility of the video recording of the 7^th of January 2008.   I was advised, prior to the proceedings, that it is highly irregular to allow Counsel on behalf of a witness to address a Court in a criminal trial in order to have evidence excluded from the trial.   Despite the fact that Counsel on my behalf addressed the Honourable Presiding Judge and raised objections to Mr. Hodes addressing the Honourable Presiding Judge, he was indeed allowed to address the Court without Mr Nel even being requested to address the Honourable Presiding Judge on this issue.  What was even more disturbing was the fact that Hodes in his opposition to the recording be allowed as evidential material made serious false allegations against me and the Honourable Presiding Judge did not intervene and/or make any remark and/or raise any concern with Mr. Hodes of the fact that he falsely accused me of being responsible for the manufacturing of the video recording and being part of a renegade team.  I am referring to the following:

 HODES:“…………One, and I say it with all due respect, one must then apply that to where the accused is a police officer.  If somehow he obtained the services of a colleague or a renegade colleague for that matter to obtain the Statement it does not elevate it or change it with respect My Lord, in my submission.”

 See:   Record: P. 580, lines 21 to 25.   

 42.2   Despite the fact that Counsel, on my behalf, raised objection to the false allegation against me and the fact that there is no suggestion in the evidence led by the Prosecution that I obtained the services of Commissioner Mphego, the Honourable Presiding Judge chose not to make any remark and/or raise any concern with Mr. Hodes.

 43.  The Honourable President Judge’s conduct, when dealing with an objection by the Prosecution regarding the date of payment of an amount of R200 000.00 to me by Agliotti also raised concern.  The following question was put by my Counsel when Mr Nel objected:

 Well Mr Agliotti, is it not right that you did not even recall initially, at statement stage, in which year you allegedly paid an amount of R200 000 to the accused?  You in fact stated it may have been in 2005 if I recall.   ‑‑‑   When I was doing my statement?

Yes.   ‑‑‑   Yes, I must be – I could not actually recall.  As I have said to you before I did not have all the cheques, cheque stubs at my disposal.  I really must agree, I did not know exactly when.

You see that is the position Mr Agliotti.  Then clearly you cannot link a 2004 cheque of R200 000 specifically to the accused?

MR NEL:  My Lord may I object, because put that at statement stage that he did not know when.  My Lord I have a statement, page 207 I can refer to.  Page 33 and page 207.

MR CILLIERS:  Maybe I should …[intervenes].

COURT:  Just a moment Mr Cilliers.  What do you object Mr?

MR NEL:  My objection …[indistinct] at statement stage, no there are lots of statements and that had been previously said but …[intervenes].

COURT:  But the generality in this trial at best is …[indistinct] refusing. 

          …..

COURT:  The objection that he has raised is that you said at statement stage, you could not recall, that you were to said to the witness.  Now what Mr Nel says that there is a statement and he referred you to a specific paragraph.  So the question has to be either narrowed and there are certain things have to be excluded or you have to deal with it differently but to put it broadly is factually incorrect.

MR CILLIERS:  My Lord I was busy developing it and I will develop it and I will indicate to the …[intervenes].

COURT:  Well you have put the question to the witness already and I think Mr Nel was entitled to object.  So limit it and put it correctly.

MR CILLIERS:  In your statement Mr Agliotti that you gave was, you in jail, you expressly said, paragraph 6.2 and it is page 169 My Lord, the last sentence of that paragraph Mr Agliotti:

“To the best of my recollection, this took place in 2004/2005”.

(My underlining above)

 See:   Record: P. 602, line 9 to page 603 line 21

 44. Thee following appears from the above quotation:

 44.1        The initial question or line of questioning by my Counsel was proper and substantiated by the statement of the witness. 

 44.2        The objection clearly had no merit. 

 44.3        The Honourable Presiding Judge then ruled that the questions should be limited and that Mr Nel was entitled to object.   The Honourable Presiding Judge further made a remark about the generality in this trial which I could not understand what the relevance was pertaining to the issue at hand.     

 45.  

45.1   The Honourable Presiding Judge was extremely perturbed about newspaper reporting, allegedly impacting on the credibility of the Prosecution’s case, but when Mr Pikoli and Mr. Nguka,who are both potential witnesses on behalf of the Prosecution, made public press releases, denouncing my defence as set out in my plea explanation, the Honourable Presiding Judge did not raise any concerns.

 See: Page 651 to 660(line 1 to 5)

 45.2        Similarly when the spokesperson on behalf of the NPA made public press statements after my plea explanation, refuting the claims in my defence in the strongest possible terms, the Honourable Presiding Judge was not at all concerned that it might be designed to influence the decision of the Court and raised no concern.

 45.3        The differences in approach is an indication to me that the Honourable Presiding Judge leans towards the Prosecution and might be biased against me. 

 46.  

46.1        It was from time to time  brought to the attention of the Honourable Presiding Judge ,that affidavits by state witnesses was handed to my legal team at a very late stage in the course of the trial.

 46.2        As such it was requested by my Counsel that the Prosecution has now agreed to access to the docket referred to as Empire K-investigation.

 46.3        My Counsel informed the Honourable Presiding Judge that we have previously requested access thereto, but that the Prosecution denied my legal team access thereto. Mr.Nel confirmed their previous refusal to the said information and stated that he now agrees that it might be relevant.

 46.4        The Honourable Presiding Judge suggested that my legal team was at fault and should have foreseen this. The Honourable Presiding Judge was reluctant to allow time in order for the Defence team to have regard to the relevant information.

 46.5        The Honourable Presiding Judge never raised any question with Mr Nel as to why witness statements were not provide timeously to the Defence.  In this regard I may mention for instance that the statement of Rautenbach was handed to the Defence only during the week before the trial commenced whereas it was already prepared and signed some three months earlier.

 47.  

47.1        The Honourable Presiding Judge has, on various occasions, displayed impatience when my Counsel requested time to consider or investigate issues of importance in the trial.

 47.2        The same impatience was not displayed when the Prosecution needed the time to adjourn for the amendments to the charge sheet or for the proper formulation of the indemnities in terms of section 204 of the Criminal Procedure Act at the request of Mr Nel.

 48.  I respectfully submit that under the circumstances my apprehension and perception that the Honourable Trial Judge is biased against me is reasonable.   It must also be borne in mind that there are still a large number of witnesses to be called according to the witness list provided by the Prosecution, and that it would be practical that a de nova trial should rather start at this stage than later in the proceedings.  I therefore respectfully submit that a proper case has been made out for the recusal of the Honourable Trial Judge.

 

 

_______________________

DEPONENT

 

SIGNED and SWORN to at PRETORIA on this _______ day of OCTOBER 2009 by the Deponent who stated that:

 

1. He knows and understands the contents of the declaration; and 
2. He has no objection to taking the prescribed oath; and
3. He considers the prescribed oath as binding on his conscience;

 

And Government Notice Regulation 1258 as amended by the Government Notice Regulation 1648, Government Notice Regulation 1428 and Government Notice Regulation 773 was fully complied with.

 

 

 

___________________________

COMMISSIONER OF OATHS

FULL NAMES:

BUSINESS ADDRESS:

AREA:

DESIGNATION:

 

 

 

 

 

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