Why hasn't Agliotti been charged with fraud?

One of the most fascinating aspects of the Brett Kebble murder trial in the South Gauteng High Court in Johannesburg is the fact that the accused, Glenn Agliotti, has not been charged with fraud relating to what appears to be a defence of assisted suicide.

The evidence given by Agliotti in the corruption trial of former top cop Jackie Selebi, as well as both Michael “Mikey” Schultz and Nigel McGurk, appears to be that Kebble ordered his own killing. So much so that, as Schultz testified, he waited “patiently” for the gun to be fixed after it misfired on the first two occasions.

According to the latter two, Clinton Nassif, Kebble’s head of security, made all the arrangements. Unlike Stephen Mildenhall, who was purportedly an unwitting victim on a hit list, Kebble allegedly ordered his own hit.

If that be so then — to a greater or lesser degree — this much is common cause.

Yet that raises the question of why Agliotti, in the knowledge that this was aimed at deriving financial benefit, has not been charged with fraud as well.

The crime itself consists of the unlawful and intentional making of a misrepresentation, knowing it to be false, to the prejudice or potential prejudice of others.

In this case the misrepresentation consists of holding out that Kebble was murdered by hijackers or hitmen when all along the parties knew it had been arranged by Kebble under controlled circumstances. At least if the version being given is true. The prejudice primarily being suffered by the insurance companies who paid out on a murder charge — noting of course that potential prejudice would suffice to sustain the charge.

Of course the fact that South African law does not recognise assisted suicide will be of concern in terms of the civil case rather than the criminal one. In this regard if a policy pays out on murder then in terms of South African law — as it presently stands — Kebble fits that description. The insurers can jump up and down all they like but as far as the civil court is concerned the Brett Kebble matter is murder because we don’t recognise assisted suicide.

It will be interesting to see the court’s reaction if such a matter finds its way to some poor unsuspecting judge.

In terms of the criminal case, however, the intention was clear — make it look like murder in order to derive financial benefit but claim assisted suicide if caught. Murder is the unlawful and intentional killing of another human being. To exclude unlawfulness one has to show grounds of justification of which assisted suicide is presently not one. Intention in this case is clear and need not be canvassed here. That it is the killing of another human being speaks for itself.

In Lawrence Hodes, Agliotti has an outstanding counsel and it is worthwhile for junior counsel to attend court to see how he approaches these issues.