Deputy Chief Justice Raymond Zondo said on Tuesday that he would instruct the secretary of the state capture commission to lay criminal charges against former SAA chairperson Dudu Myeni for defying a summons to appear to testify.
Zondo announced the decision after Myeni’s lawyer, Nqabayethu Buthelezi, appeared at the commission alone to seek a postponement, arguing that many of the questions that would be put to Myeni had been raised in the past and that on those occasions she had invoked the privilege not to incriminate herself.
It was to respond to arguments sent to her by the evidence leader on this score, that she was seeking more time, Buthelezi said.
Evidence leaders Kate Hofmeyr and Pule Seleka countered that since Myeni had not formally been excused, and had not even formally filed for a postponement, she was obliged to appear.
“We may not even be in the world of a postponement if Ms Myeni is in defiance of a summons … my submission is that Ms Myeni is indeed in defiance of a summons and that is a criminal offence,” Hofmeyr argued.
She said Buthelezi had referred to Myeni being under the impression after asking for a postponement on Friday and receiving no answer, that the commission’s silence meant she was excused.
“That defies, with respect, even logic because when the compulsion power of this commission has been exercised and you motivate for it to be stayed and according to evidence from the bar you receive no response, it is not sufficient cause for you then simply not to appear,” she said.
“The assumption must be that the summons stands. If not, you have taken the postponement for yourself.”
Hofmeyr added that any request for a postponement must be done on oath in an affidavit, but, moreover, the witness should avail him or herself in the event that the postponement is denied.
Buthelezi called his client during an adjournment to see if she would be available during the course of the day to testify online, but Myeni told him she was en route to a family engagement in Port Shepstone.
Hofmeyr said this was a clear indication that Myeni had flouted even her own lawyer’s advice that she needed to present herself to the commission on Tuesday.
Zondo concurred that Myeni’s approach begged the question as to whether she was simply going to do as she pleased.
“The question arises: in your own mind, what do you intend is going to happen if your application is dismissed? Do you have in mind that you are still going to comply, or do you have in mind that you are not going to comply anyway?”
Myeni now finds herself in the company of former president Jacob Zuma, against whom the commission laid criminal charges for flouting several summonses to testify.
Hofmeyr said the problem seemed to go beyond Tuesday’s failure to appear to “[the] approach that Ms Myeni has taken generally to accountability for matters that this commission is concerned with”, in that she had evaded a parliamentary inquiry in 2018 on the same issues relating to Eskom that the evidence leaders now wanted to discuss with her.
The parliamentary inquiry heard, in Myeni’s absence, that she, at a meeting at Zuma’s home, gave instructions that four Eskom executives, including former chief executive Tshediso Matona, be suspended. The legislature sought to summon Myeni, only for her to evade the sheriff.
“There is a commonality between what happened there and what has happened today. It is part of a steadfast resistance to be accountable to those who require answers about what has happened in our country,” Hofmeyr said.
Zondo said he would give instructions to commission secretary Itumeleng Mosala to lay criminal charges, but instructed Buthelezi to ensure that his client was available to testify electronically at 2pm.
Myeni appeared before the commission over three days in November last year, but responded to most questions by saying she could not answer for fear of incriminating herself.
Earlier last year, the high court in Pretoria declared Myeni a delinquent director for her actions as SAA.