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Extracts from My Second Initiation by Vusi Pikoli and Mandy Wiener explains some of the controversial prosecutorial decisions during his tenure as NPA boss.
The greatest criticism of my tenure as NDPP (national director of public prosecutions) remains focused on the decision to grant indemnity to criminals in exchange for their testimony as per Section 105A of the Criminal Procedure Act, which allows for plea bargains, and Section 204 of that same act, which allows full immunity from prosecution.
Plea bargains have always been part and parcel of our law. Section 105A agreements happen almost on a daily basis throughout the country and are nothing new. Plea bargains are a device to ensure that prosecutors do not waste the court’s time and save the costs of a trial where a matter can be settled.
At one stage during my term of office as the director-general in the Department of Justice and Constitutional Development, prosecutors from the Bureau of Justice Assistance in New York came to encourage prosecutors to make use of plea-bargain arrangements.
The benefit of this approach is to speed matters up and ensure the co-operation of suspects in order to prosecute others who are guilty.
It is important to note that plea bargains do not necessarily mean that suspects do not face jail time. Accomplice witnesses can give evidence in exchange for lesser sentences. The plea bargain, as a legal principle, has been used by prosecutors throughout the world.
Section 204 immunity arrangements are generally used in cases of organised crime where law enforcement authorities are planning to bust crime syndicates. Immunity is international best practice in matters of organised crime, especially in cases involving corruption, which is often difficult to prove, because those who are involved in these crimes are seldom willing to talk.
There is considerable reluctance to expose one another, simply because the one who corrupts is as guilty as the one who has been corrupted.
Therefore, it is very difficult to accumulate evidence and, at times, the tactic of offering immunity must be implemented.
A prime example of this is the Selebi/Kebble matter. When the Bad Guys team first came to me with the idea of offering 204 agreements to the shooters, Nassif and Agliotti, I didn’t immediately buy into it - it took me some time to come around to the idea.
I said: “Guys, whom then are we going to prosecute?” - because obviously it meant we were sacrificing a conviction in the Kebble murder trial in order to convict Selebi on corruption.
A decision was ultimately taken to prosecute those who we suspected to be responsible for arranging the Kebble murder, Glenn Agliotti and John Stratton, whom we regarded as the kingpins, and to enter into deals with the shooters – in other words, the runners. We never lost sight of the seriousness of the murder case but we were after the big guns.
I realised there would be a public outcry because most people would not understand the law, but I was prepared to face the fire.
What most people see is a person who pulled a trigger roaming free. They don’t realise that we have actually been able to bust a criminal syndicate right at the top. The “button men”, those who pull triggers for money, can be bought at any time.
If they are sent to jail, others simply take their place. Much the same is true of runners in drug cartels, who can always be replaced. The only way to crack a syndicate is to kill it at the top.
I accept that the greatest criticism of my tenure is that I allowed Kebble’s killers to go free, but what could possibly be worse than a national police commissioner who is a criminal himself: guilty of corruption and of protecting criminals?
We would never have been able to solve the Kebble murder were it not for those deals. The police were in the dark and the case was stagnating, especially since the murder scene had been contaminated.
The car had been washed and the evidence compromised, so the case was dead, dying, finished – until the Scorpions arrived.
Without the confessions of the shooters and them explaining the entire scenario, we would never have known what happened that night.
We also ensured that the shooters remained on our radar in case they went on to commit other crimes.
For me, criminals are criminals and we knew they had been involved in other crimes before.
I don’t think it’s fair to say we prioritised the Selebi case over that of the Kebble murder.
We had the confessions of the killers and we felt it was important to go after the people who had issued the instructions from the top rather than those who had pulled the trigger.
We never envisaged that Glenn Agliotti would walk free. We also intended to prosecute Agliotti, along with Stratton, and we believed both would have stood trial together for the death of Kebble.
It was then acting NDPP Menzi Simelane’s decision to remove Gerrie Nel and the Bad Guys team from the case, replacing them at the last minute just as the case was going to trial.
That original team was intimately involved with the case and knew everything about it. I can only speculate that this was done because the relationship between Simelane and the Bad Guys team had soured.
I have also always believed that the move was an intentional act of sabotage so that the prosecution would fail and fingers could again be pointed at me for having entered into plea-bargain arrangements.
In my view, Simelane was being spiteful and, as a result, he compromised the criminal justice system. They were experienced prosecutors and investigators and I believe that had they prosecuted Agliotti, there would have been a far greater chance of securing a conviction.
The team who replaced them was entirely at sea, and it was clear that this man was going to walk free. After I left the NPA, I also didn’t see any enthusiasm in following through with the extradition of Stratton, who is still in Australia.
And, despite the continued criticism, I stand by my decisions in the Kebble/Selebi matter. This is not because I’m stubborn, but rather because I believe those decisions were correct.
The Kebble docket would be lying in a police office drawer, empty and abandoned, were it not for those deals. At least now the whole country knows how Brett Kebble died. The Scorpions should get some credit for that.
I know the public responds to these things on an emotional level, but it is important for our democracy to allow institutions such as the NPA to make decisions without political interference. Even if you are wrong, and mistakes are made from time to time, it would be wrong to justify political interference based on these decisions.
In fact, the independent panel appointed by Acting NDPP Mokotedi Mpshe to review these decisions found that we were correct and came to the same conclusion. You could not separate the prosecution of Jackie Selebi and all the 204 agreements and the plea-bargain deals we had managed to secure.
What the public sees are the killers, who don’t appear remorseful, walking around as free men with the opportunity to commit crime again. From a legal point of view, the plea-bargain approach is sound and solid, but it remains difficult to argue against public sentiment.
* My Second Initiation by Vusi Pikoli and Mandy Wiener is published by Picador Africa, an imprint of Pan Macmillan South Africa at recommended retail price of R220.