by Mandy Wiener
The initial plan was to take Oscar to court at the Pretoria Central Prison. The Prison Court is a branch of the Pretoria Court, which falls under Nair’s jurisdiction. Nair was concerned from the outset that it would not be feasible for the matter to be held at the Prison Court due to space constraints and ordered that the case be brought to the Magistrate’s Court. However, there was also confusion on a legal basis around which level of court should hear the bail application. According to legislation in South Africa, a crime considered to be a so-called Schedule 6 offence must be heard at the District Court unless the Director of Public Prosecutions issues a certificate or otherwise orders that it be heard in the Regional Court. As far as Nair was concerned, there was no reason why the case should not come before him.
While the legalities were being deliberated, police officers in charge of the investigation were also attempting to follow protocol. If a matter arose within a certain geographical jurisdiction in Pretoria, such as the Silver Lakes area in which the Silver Woods estate is situated, it would fall under a particular police station. Following the fire at the Magistrate’s Court, certain police stations had been allocated to specific courts in order to speed up the work backlog. Ordinarily, Oscar’s case would have been amongst those allocated to the Prison Court, but for Nair that made no logistical sense.
In agreement with the Chief Prosecutor, it was decided that Oscar would appear in the Magistrate’s Court the following day to bring a formal bail application. Nair allocated the case to Court C, a room he regularly uses as it is conveniently close to his office and it would be able to cope with a large volume of people.
Nair went home that evening and, over dinner, told his wife Paddy and their three children that he would be presiding over Oscar’s bail application the following day. News of the shooting had gripped the family in much the same way that it had caught the attention of the rest of the country. Fortunately Nair had experience with highly publicised cases involving celebrities and knew that the case was not up for discussion – not with his children or his wife.
Over the course of his career, Nair had been the presiding officer in several other cases featuring high-profile individuals. In 2008, he had convicted former middle-distance runner Sydney Maree on two counts of fraud and sentenced him to five years in jail. The athlete, who had competed for both South Africa and the United States, was found guilty of transferring funds from the National Empowerment Fund to his personal bank account while he was the acting chief executive. Nair also presided over the bail application of rugby player Jacobus ‘Bees’ Roux who had been arrested in August 2010 for allegedly beating a metro police officer to death. Nair granted bail of R100 000 – seen as exorbitant by the rugby player’s legal team. Roux entered into a contentious plea bargain deal in the High Court a year later, for which he was given a five-year suspended jail sentence after pleading guilty to a charge of culpable homicide. Roux had said in court that the police officer, Sergeant Johannes Mogale, had wanted to rob him and he had acted in self-defence. As part of the agreement, the rugby player paid Mogale’s family R750 000 as compensation. Another well-known rugby celebrity, Naas Botha, had appeared in Nair’s courtroom as part of a maintenance matter, while radio personality Gareth Cliff also made an appearance before him for speeding.
The case that had garnered the most sustained media attention was that of Judge Nkola Motata. In 2007, the High Court judge had crashed his Jaguar into the wall of a residence in Hurlingham in Johannesburg and was video-recorded making racial slurs. Following a prolonged court case, Nair convicted the judge of drunk driving and gave him a R20 000 fine.
Nair had thus tasted the backlash of public and media attention before and was cognisant that there would be intense interest in this case too. However, neither Nair nor his family had any idea of the scale of the story and the sheer size of the media contingent that would face him when he walked into his courtroom the following day.
The Legal Teams
The drive into the Pretoria central business district before 6am is a breeze. The taxis are just starting their routes for the day and there are very few motorists. Court proceedings usually get underway at around 9am in the Magistrate’s Court, but queues were expected on this Friday morning, so getting there early was vital.
At the crack of dawn, the vagrants outside the Frances Baard Street entrance to the courthouse make way for the newspaper vendors who carpet the stone tiles with broadsheets, tabloids and posters blaring headlines. Only one story was leading the papers on Friday, 15 February 2013:
‘Bloody Valentine’
‘Deadly Valentine’
‘Blade Gunner’
‘Valentine’s Tragedy’
‘Golden Boy Loses His Shine’
Various portfolio photographs of Reeva accompanied accompanied pictures of her lover leaving the Boschkop police station, his hands thrust deep into his pockets and head bowed.
The courtroom was full but finding a seat was not impossible. Photographers took up their places around the dock. They stood shoulder to shoulder, some of them crouched down, while others looked over their colleagues’ heads. The benches to the right behind the dock were reserved for family members. Oscar’s father Henke, his uncle Arnold, his brother Carl, and sister Aimee took their places in the front row behind the accused.
Speculation was rife about which prosecutors would handle the matter but it became clear fairly early on that advocates Gerrie Nel and Andrea Johnson had been tasked with the case. They were a crack team famous for putting the country’s former police commissioner and head of Interpol Jackie Selebi in jail for corruption. Their handling of that case and of Operation Bad Guys – which centred on the murder of mining tycoon Brett Kebble – had seen them fall out of political favour with their bosses at the National Prosecuting Authority. They were viewed with suspicion and left to their own devices in a forgotten corner of the NPA’s Silverton offices. But this was a massive case with international interest and their employers had clearly decided they were the most capable prosecutors for the job. Together, they had recently prosecuted the killers of young Pretoria mother Chanelle Henning, who had been shot dead shortly after dropping her young son at school.
Nel, a diminutive Afrikaans-speaking man with a hard, creased face and short white-blond hair is a relentless prosecutor with a fastidious obsession with detail. His wit is dry and sarcasm thick and he rarely shows emotion. The part-time wrestling coach is known for his patience in meticulously building cases and will carefully craft a conviction witness by witness until the full picture of his strategy emerges. While sitting in court he passes the time by doodling, drawing elaborate sketches in his notebook, yet always following proceedings intensely and quick to jump to his feet to object.
Nel grew up in the Limpopo platteland, in what was known as Potgietersrus and is now called Monoplane. He earned his stripes as a junior prosecutor for the state against former Conservative Party MP Clive Derby-Lewis and right-wing Polish immigrant Janus Walusz, who were convicted of assassinating South African Communist Party leader Chris Hani at his home in 1993. The murder was part of a plot to attempt to derail negotiations to end the apartheid regime.
In 2008 Nel was sensationally arrested by the SAPS in a pre-dawn raid on his Pretoria home on trumped-up charges as part of a bitter rivalry between the SAPS and the elite crime-fighting unit the Directorate of Special Operations, also known as the Scorpions. The unit was controversially disbanded by the ANC government after it investigated and prosecuted several high-ranking politicians, including President Jacob Zuma.
Nel was head of the Scorpions in Gauteng and his persistent prosecution of Selebi drew the ire of senior police officers – so much so that they dug up a reason to see him in handcuffs, but the charges against him did not stick. After his arrest, the National Prosecuting Authority was forced to issue a statement denying that the prosecutor had ever been part of any ‘riot cases’, as claimed in the media at the time. The organisation also denied he had ever
been a member of the right-wing Afrikaner organisation, the Broederbond.
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.
