Businessman and alleged criminal kingpin Vusimuzi “Cat” Matlala briefly appeared before the Madlanga Commission on Wednesday, seeking a postponement of his testimony until the conclusion of his criminal trial.
Matlala’s lawyer, Annelene van den Heever, told the commission that her client could not answer questions while criminal proceedings were pending and before he had access to information relating to a collapsed plea agreement.
“When you have a person that is either an accused or a suspect, your constitutional rights override the compulsion that would be by the commission to provide evidence,” said Van den Heever.
Commission chairperson Justice Mbuyiseli Madlanga said not all of Matlala’s potential evidence was covered by section 35 of the Constitution, which provides accused and detained persons with rights to remain silent and to legal representation.
However, Van den Heever argued that, pending the finalisation of the criminal case and access to documents relating to the failed plea agreement, her client faced the risk of self-incrimination.
Evidence leader advocate Sesi Baloyi asked whether it was Matlala’s position that he would neither submit a statement nor testify before the commission until he received the material.
“Of course that is my position at this point because I am ethically bound and I do not know any counsel who would do otherwise,” Van den Heever replied.
She added that Matlala had told her that he would submit a statement even if the requested material was not made available.
“I want to find out when you can file the statement,” Baloyi said.
“We think we can do it in two weeks but please take into account that we have a trial that starts on Monday,” Van den Heever responded.
Matlala faces charges of fraud and corruption in the R360 million Medicare24 case with 15 other co-accused, which includes nine senior police officials, three company directors and the national police commissioner, Fannie Masemola.
Matlala previously entered into a plea deal with the Investigative Directorate Against Corruption (Idac). The courts rejected the deal.
Van den Heever argued that Matlala’s public testimony before the commission could prejudice Matlala before the trial.
“My submissions are quite clear pertaining to the upcoming trial; I think we have the right to be presumed innocent. This commission is watched by many people and I’m just afraid that, as it goes, the questioning of him — and I’m not necessarily saying by yourselves and I know my learned friend [evidence leader Mahlape Sello] will try to make him look guilty. He will go into his trial with baggage and I’m just trying to prevent that,” she said.
Van den Heever also requested access to recordings submitted to the commission by Matlala’s accusers that she said concerned her client.
Evidence leader Sello opposed the application, noting that Matlala had appeared before the commission on 7 July to request a postponement and that no new facts had emerged to justify a further delay.
“This is a waste of the commission’s time,” Sello said.
She argued that the constitutional rights relied upon by Matlala’s legal team existed when he first sought a postponement on 7 July.
“I resist the urge to argue that this is a moving target and each time we think we have that target, that target moves. And we are continuously chasing a rabbit we cannot catch. And I implore you and the commissioners to put an end to this.”
Sello said witnesses were expected to honour agreed-upon dates and that the commission was operating under strict time constraints.
“The commission has to move dates around and find another slot. I am concerned about the approach being adopted by Mr Matlala’s representatives and I don’t think it is particularly appreciative of the commission’s circumstances,” she said.
She further argued that the failed plea agreement with Idac fell outside the commission’s terms of reference.
Sello said Matlala could exercise his right to decline answering specific questions where necessary.
Sello added that if Matlala did not receive the requested material from Idac, then he would not be legally bound to appear before the commission. However, she added that if Matlala’s lawyers could submit the affidavit without it being conditional to receiving the Idac material, then his testimony should go ahead.
“If that is the case, then we just need to set a date. And if the statement is not filed, then we shall be back and I suggest that consequences should follow,” she said.
Madlanga directed Sello and Van den Heever to agree on a new date for Matlala’s testimony, as well as a deadline for the submission of his affidavit.
Matlala will file affidavit statement on 29 July and he will testify from 1 September.