Makhosandile Zulu
4 minute read
4 Nov 2020
2:33 pm

Dudu Myeni flags Zondo commission files used in delinquent director case

Makhosandile Zulu

The commission's Advocate Kate Hofmeyr says the watermark of the commission on the documents Outa used is an indication that these are public.

Former SAA chairperson Dudu Myeni. Picture: Neil McCartney

Testifying at the Commission of Inquiry into State Capture, Myeni invoked her right to silence to matters pertaining to SAA.

Myeni was concerned that almost all the files Outa used in court against her came from the commission and bore its letterheads, logos and watermark.

She said her legal representative had written to the commission to enquire whether it had given Outa the permission to use these documents.

Myeni said she preferred to invoke her right to silence, with the permission of the commission’s chair – Deputy Chief Justice Raymond Zondo – because following the court judgment declaring her a delinquent director, the court ordered that the National Prosecuting Authority (NPA) should investigate the decisions taken by the board she chaired, “which were then put on my shoulders as one person”.

“But I’m prepared, chairperson, to continue question by question to say I invoke my right to silence,” Myeni said, and emphasised that her appearing before the commission was out of respect for its work and Zondo.

“I also, chairperson, want to assure you that I am a law-abiding citizen, therefore I really do not want to incriminate myself to answer questions which the judge has asked the NPA to investigate,” Myeni added.

Representing Myeni, Advocate Thabani Masuku said an agreement had been reached between the commission and his team that Myeni would assert her right to silence to questions and topics she believes might be the subject of interest for law enforcement agencies.

Zondo said he does not know when and how Outa obtained the documents it used in its case against Myeni, however, he clarified that once witnesses have testified at the commission, their evidence is made public.

Buthelezi for Myeni told the commission that the judgement of 27 May declaring Myeni a delinquent director was “open-ended and it’s all-encompassing to all things SAA” and that considering that it was unclear what the NPA was probing following the court order, the right to silence would be invoked by the former SAA chair to avoid self-incriminating herself.

ALSO READ: WATCH LIVE: Ex-SAA chair Dudu Myeni testifies at Zondo commission via Zoom

The commission’s Advocate Kate Hofmeyr argued that different rights were being “elided” with each other, with certain constitutional rights being applicable at the commission while others were not.

Hofmeyr argued that the right to remain silent was applicable in criminal proceedings and not at the commission.

However, according to the Commissions Act, a witness has the privilege not to be compelled to answer questions that would expose them to a criminal charge but a test has to be applied before the commission rules on whether a witness may invoke that privilege, Hofmeyr argued.

With regards to the Outa trial and the commission’s documents the organisation used, Hofmeyr pointed out that most of the SAA evidence before the commission was dealt with in June last year and clarified that the watermark on the documents was an indication that these were now public.

Hofmeyr said the commission had asked for Myeni’s legal team to identify the specific documents Outa used to determine if whether any of these were not public at the time of trial.

Hofmeyr further told Zondo that Outa’s use of the commission’s documents in its case against Myeni was not a basis to invoke the right to silence.

Masuku requested Zondo to be fair to Myeni and be cognisant of the judgment and order because “before you is a witness who has an axe hanging over her head”.

Zondo clarified that the commission had no intention of being unfair to Myeni or any other witness.

Masuku further said the “possibly imminent” danger his client fears is that the answers she gave at the commission on SAA may be used against her in a court of law.

Hofmeyr said a regulation of the commission makes it clear that any answers given at the commission are not admissible in a later criminal trial except in a trial related to perjury.

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