'Not enough evidence to secure a conviction against Agliotti'

Advocate Laurence Hodes SC, at the close of the state’s case in the Brett Kebble murder trial in the High Court in Johannesburg, applied for the discharge of his client — murder accused Glenn Agliotti — on all four charges.

Agliotti is accused of two counts of conspiracy to commit murder, one count of attempted murder and one murder charge. The murder charge and one of the conspiracy counts relate to the September 2005 shooting of Brett Kebble in Melrose, north of Johannesburg.

He is further accused of conspiring to kill Allan Gray auditor Stephen Mildenhall, Jean Daniel Nortier, Dr Mark Bristow and Mark Wellesley Woods while the attempted murder charge relates to the shooting of Mildenhall in Cape Town in August 2005.

The application comes in terms of Section 174 of the Criminal Procedure Act No. 51 of 1977 which reads as follows :

“174. Accused may be discharged at close of case for prosecution.— If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.”

In deciding on the application the court will have reference to S v Lubaxa 2001(2) SACR 703 (SA) where the Supreme Court of Appeal per Nugent AJA (with Harms, Scott, Mpati JJ’s and Conradie AJA as they were then concurring) gave a useful and authoritative review of the decisions dealing with Section 174 and the tests applied by our courts.

In particular JUDGE L P TLALETSI in S v Liebenberg and Another (K/S 88 /04) [2005] ZANCHC 122 referred to Lubaxa as follows :

“5. As I understand, the court in Lubaxa (supra) was to decide whether a presiding officer has a discretion in terms of this section, and the effect of Section 35(3) of the Constitution Act 108 of 1996 on this discretion. This section guarantees to every person accused, the right to a fair trial. The court held that an accused person (whether or not he is represented) is entitled to be discharged at the close of the case for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself. The failure to discharge an accused in those circumstances, if necessary mero motu, is a breach of the rights that are guaranteed by the Constitution and will ordinarily vitiate a conviction based exclusively upon his self-incriminatory evidence.”

What the court in Agliotti’s case now has to decide is whether a prima facie case has been made out by the state which the accused has to answer.

With respect to the issue of the state having proved a prima facie case the Judge in S v Liebenberg and Another stated :

“9. On the second ground, Mr Kruger has in some detail set out facts that are common cause and those that are in dispute. He has highlighted various contradictions and improbabilities present in the state’s case and submitted that the state has failed to establish a prima facie case against accused number 1. One must be mindful of the dictum in S v Mpetha & Others 1983(4) SA 262(C) at 265D-G, to the effect that credibility would play only a very limited role and the evidence ignored only if it was of such poor quality that no reasonable person could possibly accept it. One should also bear in mind that the test at this stage refers to prima facie case and not proof beyond a reasonable doubt. On the face of it, in respect of accused number 1 the state has to a great extent placed circumstantial evidence before the court. On the face of this evidence, and the accused number one’s plea explanation, admissions and the version put to various witnesses more than one inference may be drawn.”

In S versus Lubaxa the conviction was overturned because at the close of the state case the presiding officer had failed to discharge the accused mero motu while in S v Liebenberg the application for discharge in terms of Section 174 was refused because the judge believed there was a prima facie case to answer.

Hodes’ application will be founded upon the basis that there is not enough evidence to secure a conviction against Agliotti while the state will be opposing the application.

In light of the above you may wish to hear the argument which will be addressed by counsel on November 5 in the South Gauteng High Court.