One Tragic Night (22 page)

As a result of his relentless prosecution of Selebi, Nel made himself unpopular within the NPA, particularly with the former acting head of the organisation Nomgcobo Jiba, who also allegedly blamed Nel for the prosecution and conviction of her husband, ex-Scorpions member Booker Nhantsi. Nhantsi was convicted of the theft of trust funds totalling nearly R200 000 before Zuma granted him a presidential pardon.

Despite their success rate, however, Nel and his team were repeatedly subjected to in-house investigations and witch-hunts. The animosity also had its roots in the Selebi case and Nel's belief that Jiba had played a role in having him arrested on trumped-up charges. Jiba was indeed suspended from the NPA for her alleged role in the arrest, and during her Labour Court application against the prosecuting authority, produced extracts from Nel's diaries seized during a raid on his office. Jiba eventually settled her case with the NPA and returned to the organisation at the end of 2009.

Much to Jiba's chagrin, in 2012 Nel won the International Association of Prosecutors (IAP) Special Achievement Award for his work against the national police commissioner and his ‘fierce pursuit of the vision of the National Prosecuting Authority's ideals to achieve justice in society'. The IAP lauded Nel's prosecuting skills and the approach he had taken to his cases. ‘It bears mentioning that the IAP is proud to have recognised the exceptional qualities of integrity, independence and perseverance that Advocate Nel has displayed in the past,' it said.

‘It is hardly surprising that the NPA has chosen Advocate Nel to lead the prosecution in another reportedly sensitive and difficult matter that would seem to require a prosecutor such as one with Advocate Nel's track record.'

A state advocate endearingly recalls how, when she first became a junior prosecutor in Johannesburg in the late 1990s, she was very curious about ‘this funny, short man who would rush through the Director of Public Prosecution's office during tea time with his arms filled with files, his gown flapping behind him and a bevy of policemen trailing in his wake'. Nel was cutting his tea break short because he was claustrophobic and wouldn't catch the lifts in the building. He needed the time to run up the stairs to make it to court in time.

Nel is highly regarded amongst criminal defence attorneys who have come up against him in court. ‘Gerrie is the one man in the National Prosecuting Authority who, if he is briefed in a matter, will do everything in his power to get a conviction. You have a specific place in the toolbox of the NPA for someone
like Nel. If you want a conviction, you give him the case,' says one lawyer who has regularly come up against the prosecutor in court.

Andrea Johnson is a petite, fiery prosecutor, one who is regarded by her colleagues as highly principled. In her Durban Indian accent, she says it like it is, but will always ensure her actions are proper and that she is ‘doing the right thing'. Johnson, who was schooled in the small KwaZulu-Natal town of Scottburgh, was fast-tracked through the echelons of the civil service. Her first job was prosecuting in Alberton before she did a short stint in the district courts where she was the first junior advocate to secure a life sentence at the time. She became a senior state advocate in the late 1990s, and in 1999 was amongst the first batch of prosecutors assigned to the Scorpions special unit. She has worked closely in tandem with Nel ever since.

Despite the public profile of the accused, Nel and Johnson were indifferent about being allocated the case. They were blasé about the unprecedented media interest in the matter and couldn't quite understand why it was receiving so much attention. With their experience in publicised cases, the legal team expected there to be some significant coverage, but were taken aback by what a frenzy it was. Both knew who the Blade Runner was, of course, but neither had a particularly keen interest in athletics and were not taken in by the massive celebrity of the man. Their view was simply that it was a case like any other and switched themselves off to the coverage and speculation that at the time was very much in sympathy with Oscar and the view that the shooting had been a terrible accident.

Sitting at the defence benches was one of the country's most prominent criminal advocates, senior counsel Barry Roux. In a country where defence advocates bill fees in the tens of thousands of rand a day and have achieved rock-star status for getting bad guys off, Roux was considered to be amongst the best. With his cheery grin, short greying hair and reading glasses perched on the tip of his nose, his demeanour can be deceiving. His high-pitched voice and Afrikaans accent can also take one by surprise. Bashful and meek outside the courtroom, Roux is a predator at the lectern and has earned a reputation for cutting cross-examination. Despite the high esteem in which he is held by his colleagues, he doesn't project the same narcissistic arrogance and self-indulgence that oozes off other senior advocates, although he does like to talk, a lot.

Roux was born in Mahikeng in the North West province and spent his first
few years as a farm boy. His mother Margaret was well known in the district for her freshly baked bread, while his father was ‘a soft guy, who could never kill a thing'. While he attended the Rooigrond farm school in his junior years, he was later sent to boarding school in Lichtenburg.

While Roux may not have had a ‘calling' to study law, he made the decision to go into the field towards the end of his school career. He was conscripted to the army and joined the Department of Justice as a clerk and then as a prosecutor, while simultaneously studying for a BJuris through the University of South Africa. He quickly gained experience and by his second year at the Department was prosecuting cases, a young 19-year-old handling incidents of drunken driving and assault. In 1978, at just 22, he was appointed as a magistrate before going to the Justice Training College in Pretoria where he presented courses to his peers on the law of evidence.

But Roux wanted to go to the Bar and become an advocate, where he could learn from the likes of the esteemed Sir Sydney Kentridge and Constitutional Court Justice Johann Kriegler – and did so in 1982 when he did his pupillage. He focused on criminal law and particularly enjoyed medical negligence cases as he was intrigued by the explanations and detail shared by the doctors in these matters. He achieved silk in 2000 when he was made Senior Counsel.

In what is likely his longest-running case, Roux acted for so-called tax dodger businessman Dave King in a multibillion-rand, 11-year-long case with the South African Revenue Service (SARS). The former Rangers Football Club director finally settled the matter, agreeing to pay the taxman in excess of R700 million. Roux prosecuted another high-profile businessman, Roger Kebble, for fraud in what was known as the ‘Skilled Labour Brokers' affair, in which Kebble was charged with siphoning off money paid to SLB while he was in control of the Durban Roodepoort Deep mining company. The case was struck off the roll in 2005. Roux also featured in the case surrounding the murder of Kebble's son Brett. He acted for Clinton Nassif, the Kebble's former head of security, who sold out the mining magnate's hired hit men in exchange for a deal with the Scorpions. Roux withdrew from the case after Glenn Agliotti claimed that Roger Kebble had paid Roux not to prosecute him. The allegations were never proven to be correct.

Barry Roux and Gerrie Nel dealt with each other during the Kebble investigation and have met in courtrooms on a number of other occasions. The most notable was in 1999, in the case of Kempton Park dentist, Dr Casper Greeff, accused of paying a handyman to kill his wife and make it appear to have been a robbery. Roux lost that round to Nel when Greeff was convicted and sentenced to life in prison. Roux and Nel dealt with each other on several other matters,
particularly when the prosecutor was in charge of the Scorpions in Gauteng. Invariably, Roux would phone Nel to enquire about a case involving one of his clients.

‘We respect Barry a lot. We were happy that it was him because we knew it would be someone who is open-minded, not petty, knows about process and procedures. He's extremely intelligent and open-minded. With Barry, it's a clean fight, it's a fair fight. Whenever there was a streak of unfairness, I say he was following instructions. It's not like him, he's not petty. He fights the case,' a member of the state's team told us.

Alongside Roux sat Kenny Oldwadge, another seasoned law man. Oldwadge, with his bulky frame and red cheeks, was the lawyer who had first addressed journalists outside Oscar's luxury estate.

A former police officer, Oldwadge was admitted to the Johannesburg Bar in 2002 and is described as ‘tenacious', ‘disciplined' and ‘no-nonsense' by a senior colleague. Members of the police investigative team weren't quite so thrilled to see Oldwadge on the opposing benches. ‘He was one of those policemen who pushed the boundaries and walked all over people. He's always very suspicious and pompous,' said one.

Sources say Oldwadge has angered many a cop and prosecutor. ‘He fights with everyone. If he doesn't have anyone to fight with, then he'll fight with himself. He's unpopular amongst magistrates, judges and prosecutors. He brings out the horns in them. He just rubs them up the wrong way,' says one senior counsel.

Oldwadge has also featured in a number of high-profile cases. He successfully defended Sizwe Mankazana, who was charged with culpable homicide and drunk driving after the car he was driving crashed, killing Nelson Mandela's 13-year-old great-granddaughter Zenani.

Oldwadge acted, too, for Kaizer Chiefs boss Bobby Motaung in his R143-million case of fraud, corruption and forgery in the Nelspruit Regional Court. Motaung and his co-accused faced charges relating to the construction of the Mbombela Stadium for the 2010 FIFA World Cup. The charges were thrown out of court and the case struck from the roll in June 2013.

Oldwadge is no stranger to the Pistorius family and represented the Olympian's brother Carl during his own trial in the Vanderbijlpark Magistrate's Court, where he was charged after an accident in 2008 that led to the death of a female motorcyclist. Blood tests conducted by the police proved that he was not under the influence of alcohol at the time, while the court found that the motorcyclist was riding at excessive speed when she collided with the back of Carl's vehicle. Carl was acquitted of culpable homicide in May 2013.

It would later emerge that in the hours following the Valentine's Day shooting, there had been a mad scramble to secure legal representation for Oscar.

Early that Thursday morning, high-profile criminal attorney Ian Small-Smith received calls from both the sportsman's father and his agent, asking him to defend Oscar. Small-Smith's reputation precedes him and he would have been the first choice for many an accused finding themselves on the wrong side of the law. Although he's now largely retired, Small-Smith and his firm BDK, earned their reputation by successfully representing, amongst others, underworld figures, bad guys and dubious characters. He negotiated the sensational plea bargain deals for the three self-confessed hit men who killed mining tycoon Brett Kebble in an apparent assisted suicide in September 2005. In a curious set of circumstances, he also represented prosecutor Gerrie Nel when he was arrested.

Small-Smith selects the few cases he still takes on very carefully and, in any event, was too busy to rush to the police station to assist that morning. Instead, he offered to send a colleague from BDK to handle the case that day and he would then take it over when his time freed up. He also called top senior counsel Mike Hellens and asked him to be on brief for the matter.

Other attempts were also being made to secure the country's best counsel for Oscar. A call was put through to high-profile criminal defence attorney Ian Levitt who has acted in several publicised cases, asking him to act but he was overseas at the time. Another call went to Robbie Kanarek, who had successfully represented Glenn Agliotti in the Kebble case. Both attempts were made by friends close to Oscar.

Senior defence counsel Laurance Hodes, who had been briefed by Kanarek as Agliotti's advocate, was also lobbied to take the case and bail Oscar out. His success in getting Agliotti acquitted had received a great deal of media coverage and it was believed he could do the same for the runner.

It was rumoured that Oldwadge's mandate had been terminated – but that proved incorrect and he remained on brief.

Carl Pistorius had a history with Oldwadge and put his trust in him and Oldwadge was on the scene of the shooting in the early hours of 14 February. It was he who took the brief to Barry Roux. Surprisingly, the decision was also made to use Brian Webber – an attorney from the firm Ramsay Webber, who managed Oscar's commercial concerns – rather than an experienced criminal attorney. Having only acted in one criminal matter before, Webber had little experience in the dirty game of strategy and cunning associated with murder charges and plea bargain deals.

Roux was working at his chambers in Sandton on that Thursday when
Oldwadge phoned, asking him to assist with Oscar's bail application. Roux was told that bail would not be opposed and didn't think much of the matter. In fact, he hadn't heard any of the media coverage of the breaking news that morning because he had driven to the Planet Fitness gym in Sandton from his home in Kempton Park just after 5am – before the story broke – and had been at his office at the Village Chambers across the road from the gym since then. As a result, Roux was oblivious to the storm raging beyond his office walls, which are adorned with colourful caricature cars, wedding photographs and legal journals.