The hearing is unravelling the mystery of what happened to R100-million of clothing factory workers’ pension funds.
In a surprise move, the inquiry’s commissioner, Jan Reitz, ruled that the media should not be present when Buthelezi gave his evidence. This followed an application to Reitz for the media to be barred.
“I was not persuaded that it would prejudice any members of the press if they were not present during the proceedings,” said Reitz.
The media was last week ordered by Western Cape High Court Judge Bennie Griesel not to report on Buthelezi’s evidence until the outcome of two legal challenges he planned to file in court. Some media houses gained access to the inquiry through a separate court ruling.
When Buthelezi asked that media be excluded, legal teams acting for the Mail & Guardianand Media 24 fought for the journalists to remain inside but Reitz refused.
“Pending the outcome of Mr Buthelezi’s applications, the press are ordered not to attend while Mr Buthelezi is giving his evidence,” he ruled.
Buthelezi and former trade unionist Richard Kawie were arrested on charges of fraud relating to the missing pension money and released on bail. Kawie sent a sick note to the inquiry on Tuesday, giving reasons why he would not appear to give his evidence.
Once hailed as a whizz asset manager, Buthelezi invested the funds in Canyon Springs which was co-owned by former deputy economic development minister Enoch Godongwana and his wife Thandiwe. Godongwana resigned from his post after appearing before the inquiry twice, amid talk that there was growing “outrage” in government circles.
The M&G‘s advocate Tracey Dicker SC told Reitz that the Constitutional Court had affirmed the media as the public’s watchdog.
“In this role, the media ensures that the public is informed of matters of public interest in order to enable them to make informed choices about the governance of our democracy,” she said.
Dicker said granting Buthelezi’s application would “amount to a limitation of the right to freedom of expression contained in Section 16 of the Constitution.”
“Any such limitation must be in accordance with Section 36 of the Constitution and must be proportional to the purpose which the limitation seeks. Freedom of expression should not be limited for ‘flimsy’ reasons,” she told the inquiry, citing a number of relevant cases.
“What is instead required is a demonstration that there is a real risk that substantial prejudice will occur if freedom of expression is not limited.”
Buthelezi had not made out a case for the relief sought by him, she said.
“Mr Buthelezi alleges that his right to a fair trial will be compromised if the media is permitted to attend the inquiry and report his testimony. The right to a fair trial clearly does not encompass the public’s perception of the guilt or innocence of the accused,” said Dicker. “It pertains only to the conduct of the criminal trial. Accordingly, Mr Buthelezi’s right to a fair trial is not implicated in this matter and his reliance on this right is misconceived.”
There was a clear and overwhelming public interest in the subject matter of the inquiry, said Dicker.
Buthelezi’s legal representative, advocate Francois Joubert SC told Reitz that he saw no reason why members of the press should be present.
In any event, Joubert said, the transcripts would be available to the media and the court had expedited the legal proceedings. Given only two weeks to file his court applications after Reitz has made a decision, Buthelezi has been ordered to file his papers on a semi-urgent basis.
Joubert said there was no point in the media being present other than to observe his client’s demeanour or to report on the colour of his suit.
Wrath of the law
Griesel had ordered that Buthelezi present himself to give evidence or face the wrath of the law after he went to court on a few occasions to avoid having to give evidence at the hearing.
Appearing relieved after the media was ordered out, Buthelezi stayed in the inquiry to finally give his evidence.
In November last year, he was subpoenaed to appear at the inquiry but failed to arrive. Buthelezi could also not be persuaded by the inquiry’s legal team to give evidence at a special inquiry set up for him in the high-security Pollsmoor Prison in January this year.
Instead, he told inquiry lawyers, who convened in a conference room at Pollsmoor with both the M&Gand Media 24 in attendance, that he was exercising his “constitutional rights” by not co-operating as his legal representative was not present.
Andre Kriel, general secretary of the South African Clothing and Textile Workers’ Union (Sactwu) – which is running the inquiry – said the union had chosen to stay neutral in the matter as its priority was to get Buthelezi’s evidence on record.
Buthelezi has previously claimed, through his lawyer at the time, that Godongwana was involved in procuring the loan at the start. Godongwana denied the allegation in an interview with the M&G, saying the funds were already in place when he took up a job at Canyon Springs.