Wednesday’s proceedings kicked off with Myeni — who appeared before the commission virtually from her home, where she is self-isolating — invoking her privilege not to incriminate herself in allegations relating to her time at the beleaguered state airline.
Myeni said she would prefer to remain silent on the SAA issue because of questions over how the Organisation Undoing Tax Abuse (Outa) managed to obtain pertinent documents from the commission.
In 2017, Outa successfully took Myeni to court to have her declared a delinquent director.
“Outa collaborated with the commission and got all the documents and the questions that are contained in all the letters that I received from the commission,” Myeni said.
“Outa is a private organisation and Outa was able to use all that is contained on the documents that I am expected to answer today. And they relied on the information that they got with the watermark of the commission.”
The high court judgment and the evidence led at the delinquency hearing was referred to the National Prosecuting Authority for further investigation into possible criminal conduct.
Chairperson of the commission, deputy chief justice Raymond Zondo, said it is the first time he is hearing of the alleged collaboration between Outa and the commission.
Evidence leader, advocate Kate Hofmeyr, explained that the right to remain silent applies to accused persons within a trial. “The right to silence, as a consequence, does not apply in these proceedings.”
But, Hofmeyr added, the privilege against self-incrimination does apply. When the privilege against self-incrimination is invoked, each question must be evaluated to determine whether it may incriminate the witness, she said.
Hofmeyr said the fact that the documents used by Outa bore the watermark of the commission was an indication that they were already public.
“Even if, unbeknownst certainly to me and it appears to you, somehow documents got from the commission to Outa in the Outa trial, that is not a basis to invoke the privilege against self-incrimination.”
Myeni’s counsel, Thabani Masuku SC, said: “Before you is a witness who has an axe hanging over her head. And part of what makes a good witness in a fact-finding commission is the ability to speak freely. She is not speaking freely.”
Musuku added that there is “a real fear, based on a judgment of a real judge that the real NPA will in the future charge her with a crime arising from her activities”.