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Zondo commission’s own goal buys key Eskom witness more time

The Zondo commission of inquiry on Wednesday suffered another delay engineered by a key witness as counsel for former Eskom chief financial officer Anoj Singh pleaded that he was not ready to testify and needed time to prepare a comprehensive affidavit for submission.

Advocate Annalien van den Heever argued that the commission had failed to timeously provide Singh with transcripts of the testimony of other witnesses relating to Eskom matters, and begged for more time to respond to their testimony in his affidavit.

Singh’s affidavit had been due on December 18 last year. Instead, Van den Heever submitted a draft affidavit, stating his reasons for not filing it up to now.

It had been Singh’s honest “wish” to testify on Wednesday, she said but, despite last-minute meetings with the commission’s legal team, it proved impossible for him to prepare. 

The request for a delay drew an irate response from Deputy Chief Justice Raymond Zondo, who said it meant the waste of a day when the commission had no time to lose.

“We will lose today, that is for sure. There are many witnesses and implicated persons who must still give evidence. It is just very, very difficult to allow any day to be lost,” he said.

Matters were made worse because Singh’s lawyers waited until the morning he was due to take the stand and file their submission.

Zondo called for an adjournment to study the submission. He then declared himself not convinced by the arguments therein. Instead, he reluctantly granted a postponement because of an embarrassing own goal scored by the commission’s staff.

The judge cut short evidence leader Pule Seleka as he prepared to answer Van den Heever’s arguments and asked why the summons served on Singh on December 17 stated that he was being called to testify on matters raised in his affidavit to the commission when at that point he had not filed one.

“Have you looked at this summons that was issued to him?” he asked, before pointing out that instead of a clear list of matters to be interrogated it mentioned only  an outstanding affidavit.

“Now what affidavit was the legal team talking about there?”

The non-existent affidavit

Seleka conceded that it was an important question and said although the summons was issued when Singh had not yet filed an affidavit, he, however, had been expected to do so the following day.

“So the summons was talking about a non-existent affidavit,” Zondo interrupted again. “Does that not make the summons defective?”

Seleka was left to reply that he had personally raised the same issue, but believed the defect was remedied by the fact that at that time there had been an undertaking from Singh’s legal team that he would comply with the directive to submit an affidavit.

“But you cannot issue a summons that says somebody has filed an affidavit when factually that has not happened. It doesn’t matter: the summons must tell the person to whom it is issued what he is required to testify about on the day he is due to appear and what effectively this summons is requiring Mr Singh to come and testify about is an affidavit that did not exist then and actually doesn’t exist even now,” Zondo replied, his irritation turning to anger.

It made it impossible for him to compel Singh to take the stand, he added.

“You and your team would have known what the issues are that you wanted him to testify about and those could have been listed,” he said.

The summons would then have been complete, and able to “stand and fall on its own”.  

Instead, if Singh were forced to testify, he would be entitled to say he could speak about nothing but the affidavit, and could then, at most, be questioned as to why it was never filed.

Zondo instructed Singh and his team to file his affidavit by the close of business on Monday.

Seleka argued that Singh had been “opportunistic” by seeking a postponement, given that the legal team had engaged with his requests for documents, and that moreover, his lawyers had not sought to rely on any defect in the summons.

But Zondo said it simply did not matter and forcing Singh to testify created the risk that he could turn to the court to challenge the summons.

“He could be entitled to say: ‘Well, if I am required to give evidence I am going to approach the court and have this summons set aside because it is fatally defective’ and he might have a good point,” Zondo said.

Seleka raised his workload as an excuse, but Zondo reminded him that it was his duty to peruse all documents issued in his workstream.

Singh was due to testify about Eskom’s irregular contracts with Trillian and McKinsey and his role in facilitating advance payments and guarantees to the Gupta family’s Tegeta Exploration that enabled it to purchase the Optimum coal mine.

These were probed and put in the public domain three years ago by a parliamentary committee, and count as some of the most flagrant, early examples of the capture of state-owned entities by rent-seeking businessmen with ties to the Zuma family.

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