The Madlanga Commission of Inquiry has faced mounting disruption after suspended Crime Intelligence head Major-General Feroz Khan was the target of an alleged assassination attempt and an increasing number of witnesses sought postponements on medical grounds.
The commission and Khan’s legal team clashed this week over the circumstances surrounding his absence after he was shot outside his Houghton home on 28 June, days before he was due to testify.
Appearing before the commission, Khan’s counsel, advocate Muhammad Vally, said his client’s condition made it impossible to obtain instructions regarding his scheduled testimony.
“We are here out of courtesy and out of respect for the process,” he said. “We also want to be in a position, once our client is able to communicate with us again, to report to him on proceedings that took place in his absence.
"I am tempted to bring an application for a postponement but I cannot because I do not have instructions either to bring it or not to bring it. That is the dilemma and difficulty we find ourselves in.”
Khan's legal team submitted an unredacted J88 medical report and a medical certificate from his treating doctor to the commission’s evidence leaders.
On Friday, evidence leader advocate Adila Hassim outlined areas of testimony the commission pursued in Khan’s absence. These include allegations relating to abuse of authority, the controversial London trip undertaken by former Ekurhuleni city manager Imogen Mashazi, Khan’s financial disclosures and several procurement matters.
“In broad outline, what I propose to cover is a series of tenders and tender activities that will emerge from our analysis of a number of chats,” Hassim said. “The chats are not confined to chats with Mr [Mohamed] Sayed. They extend to a series of conversations between Major-General Khan and Mr Ismael Vali.”
Whatsapp chats at the commission have implicated Sayed, a chief executive at Carnnilaz tobacco company, allegedly as a middleman, passing assurances from Economic Freedom Fighters (EFF) leader Julius Malema that the EFF would politically protect Khan from disciplinary processes.
Hassim told the commission that portions of the evidence would need to be heard in camera because they related to sensitive criminal investigations.
“Some of the evidence concerns ongoing criminal investigations and requires us to traverse the contents of SAPS [South African Police Service] dockets that cannot be disclosed publicly,” she said.
“It will jeopardise investigations; it will jeopardise individuals.”
During Khan’s legal team’s first appearance on Thursday, commission chairperson Justice Mbuyiseli Madlanga questioned the timing of Khan’s request to testify in camera, noting that the application was made around the same time as Khan’s alleged shooting.
Khan’s legal team has maintained that he remains in a critical condition and unable to testify either publicly or behind closed doors. Advocate Zubair Khan invited commission representatives to visit his client in hospital to verify his condition.
The lawyers also alleged that a confrontation occurred between Khan’s family and individuals seeking access to him at the hospital. They said someone in the commission had apparently leaked information.
Photographs Khan’s legal team submitted allegedly show him lying in a hospital bed with tubes inserted into his mouth and abdomen.
Madlanga denied issuing any directive authorising a visit to Khan and rejected suggestions that allegations of information leaks could justify an in-camera hearing.
The dispute comes as the commission faces increasing frustration over repeated postponements linked to medical certificates submitted by key witnesses.
North West businessperson Suileiman Carrim has twice delayed his testimony after submitting medical certificates. His appearance was first postponed from 29 April to 25 June and has now been deferred indefinitely.
Commission spokesperson Jeremy Michaels said Carrim’s health concerns appeared to be ongoing.
“The last time Mr Carrim was meant to appear before the commission, he couldn’t due to ill health and it seems that his condition persists,” Michaels said.
Evidence leader Matthew Chaskalson proposed that Carrim undergo an examination by an independent medical specialist appointed by the commission. He indicated that he would not seek to compel Carrim’s appearance on the commission's next proposed hearing date of 15 July and suggested the commission might need to make findings without his testimony.
In March, North West businessperson and alleged police informant Brown Mogotsi attracted criticism after submitting what Madlanga described as a “useless” medical certificate that provided insufficient detail about his condition.
Mogotsi is facing criminal charges relating to the alleged falsification of a police report and the public discharge of a firearm after claims that an assassination attempt against him had been staged.
Earlier in the inquiry, the testimony of Sergeant Fannie Nkosi, known as Witness F, was temporarily halted after his legal representatives submitted a medical certificate stating that he had been admitted to hospital.
In June, Medicare24 chief executive Mike van Wyk also secured a postponement after submitting a medical affidavit citing severe panic attacks.
Chaskalson has previously expressed concern about the frequency of medical postponement requests and the limited information often contained in supporting documents. The commission has, at times, considered calling medical practitioners to verify the authenticity and contents of certificates submitted by witnesses.
Madlanga has also raised the possibility of involving the Health Professions Council of South Africa to assess the validity of medical certificates and subpoenas for the doctors who issue the sick notes.
Khan’s legal team said their client remained unconscious and sedated in hospital after the alleged shooting and could not testify whether in person or in-camera.
MK Party MP Vusi Shongwe told the commission that parliament’s ad hoc committee decided to not call Khan to testify at the insistence of committee members, pointing out Malema, who has been implicated in having links to Khan and his associates.
While uncertainty remains over whether Khan will be able to appear before the commission, another central figure, Vusimuzi “Cat” Matlala is set to testify on Tuesday.