Testimony by journalist Ranjeni Munusamy before the Hefer Commission will be inadmissible hearsay evidence, the Bloemfontein High Court heard on Tuesday.
”All her evidence would be second hand, and maybe even third or fourth hand,” advocate John Campbell, for Munusamy, argued.
”She would merely be able to relay what sources had told her.”
Judge president J P Malherbe and judge D J Lombard were hearing Munusamy’s urgent appeal against retired judge Joos Hefer’s order that she must testify before his commission.
Hefer was tasked with probing allegations that the national director of public prosecutions, Bulelani Ngcuka, was an apartheid spy. Munusamy was the main author of a newspaper report in which the allegations against Ngcuka first surfaced.
Campbell suggested on Tuesday that Munusamy had only a ”second hand memory” of a microfilm containing copied top-secret documents (verifying allegations against Ngucka).
He said the commission had a ”curious way of investigating” by starting with Munusamy and not the primary sources of allegations it must probe.
It seemed ”perverse” that the commission wanted to hear her evidence before that of ANC stalwart Mac Maharaj, Foreign Affairs advisor Mo Shaik and deputy president Jacob Zuma.
Maharaj and Shaik publicly confirmed the allegations against Ngcuka after Munusamy’s report in the City Press. During the apartheid era they were involved in Project Bible, that investigated suspected spies for the erstwhile government. Zuma oversaw the project in his capacity as head of the ANC’s former intelligence wing.
Campbell added that Munusamy’s evidence could merely indicate what the rumours against Ngcuka were. ”The commission’s terms of reference are not to determine who said what to whom.”
He accused Hefer of improperly exercising his discretionary powers in the calling of witnesses before his commission.
”Until it has been established that the hard documentary evidence is unavailable, it is inadmissible to invoke second hand evidence by a journalist,” he said.
Both the Constitution and South African and international common law prescribed that a journalist be called ”last and least” to testify in an inquiry, Campbell held. This meant Munusamy could only be summonsed after all other avenues of investigation had been exhausted.
Advocate Schalk Burger, for the commission, dismissed this argument, saying he knew of no such rule.
”It is an interesting debate with no authority either in South Africa or overseas,” he added.
Burger also dismissed the hearsay argument, saying it was of relevance what Munusamy’s disclosed sources had told her. He used Maharaj as an example, although Munusamy had not named the former minister as a source.
Her evidence of what she had been told could then be compared with that of Maharaj to make an eventual value judgement, Burger argued. – Sapa