COMMISSION OF INQUIRY INTO STATE CAPTURE
HELD AT
PARKTOWN, JOHANNESBURG

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08 APRIL 2019

DAY 80

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08 APRIL 2019 – DAY 80
PROCEEDINGS HELD ON 8 APRIL 2019
CHAIRPERSON: Good morning Mr Pretorius, good morning everybody.
ADV PAUL JOSEPH PRETORIUS SC: Morning DCJ. DCJ as you are aware there is a
necessity which arisen for an application for condonation and postponement of the
evidence of two witnesses. May I firstly uplift of the copy of the application before you
and replace it with this copy? This is the original which has been duly attested.
CHAIRPERSON: Yes okay. Yes.
ADV PAUL JOSEPH PRETORIUS SC: Chair after the evidence of the last few weeks
involving matters relevant to the Free State Province and Bosasa we now moving to a
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new phase of the evidence to be presented before you and that is evidence relating to
Law Enforcement Agencies.

The original plan was that Mr McBride would give

evidence today and General Booysen would give evidence on Thursday. The necessity
for the postponement to Thursday and Monday respectively of the two witnesses has
been occasioned by the failure of the legal team to ensure – to ensure that 3.3 notices
that is notices to implicated persons to enable them to consider evidence and apply to
cross-examine have not been issued. There was a decision or a proposal at least that
in order to reduce formalities the need for formal application such as the present could
be obviated but it has now been determined in consultation with yourself Chair that this
particular application is necessary despite that intention to reassure the public and to
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reassure interested parties that despite the logistical and capacity challenges that the
commission is facing it does regard compliance with its rules as a serious matter. And
in going through the rules it may be that those rules need to be changed in one form or
another to facilitate the continuous giving of evidence before the commission. So I will
take some time for that reason to explain not for your purposes but for the benefit of
implicated parties who may be witness to this particular application and for the public at

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large to understand the rules and how they operate. Chair Rule 3.3 of the quite
comprehensive set of rules that govern the operations of this commission states quite
clearly that:
“If the commission’s legal team intends to present to the
commission a witness whose evidence implicates or may
implicate another person it must through the secretary of the
commission notify that person in writing within a reasonable time
before the witness gives evidence.”
And that notification involves a number of steps and a number of series of pieces of
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information that must be provided to that witness. But essentially the notice serves two
purposes. The first it allows a person to make arrangem ent to attend and hear the
evidence of the person who is the witness. And secondly to enable that person a
period of fourteen days – two weeks says the Rule to consider his or her position as an
implicated person to obtain legal advice if necessary to then apply to you Chair for the
leave to cross-examine. So that is essentially the two-fold purpose of a notice in terms
of Rule 3.3. Rule 3.3.6 says that:
“If an implicated person wishes to give evidence to call any
witness to give evidence on his or her behalf of wished to crossexamine the witness he must – he or she must within two weeks
from the date of the 3.3. Notice apply in writing for – to the

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commission for leave to do so.”
And then the provision is that you Chair will decide the application. R ule 3.4 states
that:
“The application to cross-examine or to give evidence or to call
another witness to give evidence must be made within fourteen

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08 APRIL 2019 – DAY 80
days from the date of the notice referred to in 3.3.”
And 3.5 then provides that:
“If any implicated person believes that he or she has received
inadequate notice then he or she may apply to the commission
for such order as will ensure that he or she is not seriously
prejudiced.”
Now Chair in summary a witness is to be called, notices given to an implicated person
of the nature and extent of that evidence. That then person then has fourteen days to
make application to give evidence, to call a witness or to cross -examine the witness
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concerned. And that implicated person has fourteen calendar days to do so. That is
the scheme of Rule 3.3 to 3.4 and of course if a person who is implicated believes he or
she has been prejudiced there is provision for relief to be granted. That is the scheme
of the rules. But Chair importantly that scheme was predicated on the assumption that
a witness would be called, due notice having given and a two week period preceding
the evidence having been provided for and in that period all the applications for cross examination would be heard. The implicated person would be given an opportunity to
respond thereto so that a witness could come and give evidence and them immediately
be cross-examined. That was the idea. That has proved unworkable for a number of
reasons. Firstly Chair if the legal team and the commission secretariat does not know

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how long a witness is to give evidence for and for how long and by how many people
that witness will be cross-examined for what periods of time it is impossible to plan in
the medium to long term for a continuous stream of evidence. So what has happened
is a matter of practicality is that evidence in chief has been planned, given and we can
therefore ensure reasonable continuous presentation of evidence without gaps in
between occasioned by uncertainties. The other problem that has occurred in practice

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is that coordinating the dates and availability of various legal teams all to be available
at a particular pre-planned date without notice to those legal teams for crossexamination has in our experience not been possible. So the solution that has been
implemented by the legal team and the commission in consultation with yourself Chair
is that witnesses come, they give evidence in chief, and then there is a postponement
for the purposes of cross-examination. So where a witness’ evidence is postponed for
cross-examination there is no prejudice in one respect at least to implicated person
because they have a long period then to consider their position to make application and
then dates can be arranged with the various legal teams for cross -examination to the
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convenience of all. The problem however is that the notice serves another purpose and
that is to arrange to be present to testify and for that reason at least some notice is
required if not fourteen days to enable lawyers or implicated partie s to be present to
hear evidence. That prejudice is alleviated somewhat by the fact that if someone is not
present physically to hear evidence; evidence is televised; it is available on record;
written statements and bundles are available or are provided to implicated persons and
so that prejudice is somewhat alleviated by the circumstances which prevail here at this
venue with the televising of witnesses and their availability electronically of a record.
One of the amendments to the rules that may be considered is that the reasonable time
should be given to witnesses rather to implicated parties’ before cross -examination

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rather than before the witness gives evidence provided that there is sufficient notice to
the implicated parties to enable that party to attend which may not be a formal Rule 3.3
Notice but another form of notice. But Chair the legal team is considering the position
and may make representations regarding a different order of things for the future
because after the break in April the pressure on the commission will be enormous and
much greater than the pressure that the commission is presently experienced. The

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application is – has also been necessitated by the fact that matters were not attended
to by the legal team. The legal team takes full responsibility for that. Nevertheless
having said that there are logistical challenges which we need not deal with in public.
Capacity and legal challenges which are being dealt with at present and are referred to
in the application. So Chair that by way of background provided a witness gives
evidence in circumstances where an implicated party has notice of the fact that that
person is giving evidence and provided an implicated party has ample time at least two
weeks and in this case it will be more to consider his or her position brief counsel or
seek assistance from the commission itself to prepare an application for cross 10

examination or to lead evidence either personally or through other people any prejudice
involved can be avoided. And our submission is that on the facts of this particular
application prejudice; serious prejudice can be avoided or remedied if any particular
party wants to come before you. That by way of background Chair if I may then
address the particular circumstances of the case? With Mr McBride of course the Chair
is aware that he was here in February. Some 30 to 50 notices have been considered
since then and quite frankly although the work could have been done it was not done
owing to the fact that those responsible and ultimately myself Chair for the issuing of
the notices were otherwise engaged. Notices have been prepared and they going out
today. In that circumstance parties will have notice that Mr McBride is intended if you

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grant the application to give evidence on Thursday. That should provide sufficient time
in our view for a party to make arrangements to hear the evidence either through
television or get a record or be present. The time for cross-examination will be far in
excess. The time to make application for cross-examination will be in excess of
fourteen days so there is no prejudice there.
CHAIRPERSON: Well the time within which to make an application for leave to cross -

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examine remains the same. It is specified in the rules.
ADV PAUL JOSEPH PRETORIUS SC: Yes it is two weeks.
CHAIRPERSON:

So – so an impression must not be created that if I grant a

postponement people have more time than fourteen days to file an application for leave
to cross-examine.
ADV PAUL JOSEPH PRETORIUS SC: That is a very good point and I should be
castigated for trying to guild the lily. Chair it is – you are quite correct Chair the
fourteen days remains the fourteen days and that – that is indeed correct. So the full
fourteen days afforded by the rules remains intact. In relation to General Booysen his
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evidence was planned for Thursday and will be postponed until Monday or soon
thereafter as he may be heard because it is not clear how long Mr McBride’s evidence
will take. We are estimating and will attempt to complete it within two days. His
evidence was due to be heard on Thursday and if it can be heard on Monday. The
position is that people can make arrangements to hear or be present to hear the
evidence and then the fourteen day period will run from today or tomorrow. I must say
that logistically the administrative team in the commission’s office is dealing with
approximately 100 hundred notices for both witnesses and so the backlog is perhaps
inevitable. In order to reassure the public Chair you are obviously aware of the planned
increase in capacity both on the attorney assistance side and on the administrative side

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which barring any hurdles should be in place within the next few weeks. So we hope to
avoid the situation in future.
CHAIRPERSON: Well the bottom line is that we are in this situation where once again
an application is made for the postponement of Mr McBride’s evidence because despite
the fact that a postponement was granted on the 18 th February precisely for the point –
for the purpose that Rule 3.3 Notices should be served on implicated persons. The

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legal team failed to make sure over more than – over a period of around what six weeks
to make sure that the notices were sent to implicated persons. That is not acceptable.
When Mr McBride’s statement was available last time I take it that it was complete with
all annexures and all that remained was that copies be made and be sent out. And now
we have to postpone his evidence again. You have indicated that the legal team takes
full responsibility for this. I appreciate that the legal team and everybody are working
extremely hard and that they are very busy but there simply can be no excuse for this
not having been done. I am sure that this experience will result in measures being put
in place to make sure that there is no repeat of this kind of mistake. The commission
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does not have a lot time left before it finishes its work within the time prescribed to it.
Therefore we need every hour – we need to use every hour and every minute that we
have to do the work and to hear witnesses. So that it is unacceptable should be made
quite clear and unequivocally. Fortunately the rules of the commission do seek to make
provision that would eliminate as far as possible any serious prejudice to implicated
persons. We have maintained from the inception of this commission that the rights of
implicated persons are important.

That everyone must be treated fairly and that

includes all implicated persons. They will be treated fairly in this commission and we
will do all we can to respect their rights. Where mistakes have happened it is important
that responsibility be taken and that steps be taken to make sure that there is no repeat
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or that prospects of a repeat are seriously reduced. I am prepared to grant the
adjournment as requested in the hope that we will not have a repeat of this. Of course
we must not overlook any inconvenience to the witnesses themselves who keep on
making themselves available and find that there must be an adjournment that is
important. It is important that we make known that we also have regard to their
convenience as well. I will therefore grant an adjournment of Mr McBride’s of the

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hearing of Mr McBride’s evidence from today to Thursday this week and that of General
Booysen from Thursday to Monday – from Thursday this week to Monday next week.
His evidence being subject to when Mr McBride’s completes his own evidence. So
therefore the evidence of those two witnesses, the hearing of the evidence of those two
witnesses is adjourned as I have indicated. The implication of that is of course that
therefore there will be no hearing of any evidence this week until Thursday morning.
On Thursday Mr Pretorius should we not start earlier than normal seeing that we are
losing time?
ADV PAUL JOSEPH PRETORIUS SC: We can Chair but apart from Mr McBride and
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General Booysen there are no witnesses from Law Enforcement Agencies planned for
this week and next week and then the interposition of evidence regarding Transnet is
planned. But happy to start earlier say 09:30 would be convenient because one needs
to prepare as well. There is a lot of work still to be done.
CHAIRPERSON: Yes.
ADV PAUL JOSEPH PRETORIUS SC: There will be an opening statement.
CHAIRPERSON: Yes.
ADV PAUL JOSEPH PRETORIUS SC: Before Mr McBride gives evidence.
CHAIRPERSON: Yes.
ADV PAUL JOSEPH PRETORIUS SC: And there may be a need for an application

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which I will discuss with you in chambers.
CHAIRPERSON: Yes. How long is the opening statement likely to take because that
may be relevant to the question of when we should start and when he is…
ADV PAUL JOSEPH PRETORIUS SC: Between one and two hours.
CHAIRPERSON: When he is likely to finish his evidence because from what you have
said we should try and aim at making sure that he finishes his evidence on Friday. So –

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you say the opening statement might be three hours?
ADV PAUL JOSEPH PRETORIUS SC: No between one and two hours.
CHAIRPERSON: Between one and two hours?
ADV PAUL JOSEPH PRETORIUS SC: I can try and restrict it to one hour.
CHAIRPERSON: And what is your own estimate of how many hours his evidence is
likely to be even though it might be difficult to say…
ADV PAUL JOSEPH PRETORIUS SC: Yes.
CHAIRPERSON: But what is your estimate?
ADV PAUL JOSEPH PRETORIUS SC: Chair if all goes according to plan and there
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are questions of limited nature and there is no need for lengthy explanations to explain
evidence we should be complete within two days.
CHAIRPERSON: Hm.
ADV PAUL JOSEPH PRETORIUS SC: But one must make provision at least in theory
for time for matters to be placed in context.
CHAIRPERSON: Yes.
ADV PAUL JOSEPH PRETORIUS SC: And collateral evidence to be given in order
to…
CHAIRPERSON: Yes.
ADV PAUL JOSEPH PRETORIUS SC: Clarify what is being said by the witness.

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CHAIRPERSON: Yes.
ADV PAUL JOSEPH PRETORIUS SC: And my fear is that that may take us over
Friday.
CHAIRPERSON: So we might have to then start early on Friday and add some time
after four o’clock as well.
ADV PAUL JOSEPH PRETORIUS SC: Yes Chair.

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CHAIRPERSON: Certainly on Thursday and maybe Friday we might need to start early
as well?
ADV PAUL JOSEPH PRETORIUS SC: Yes Chair.
CHAIRPERSON: Well they – we are going to have today, tomorrow and Wednesday
which obviously will be used for a lot of other work that always needs the attention of
the legal team as well as myself and everybody. But why should we not start at nine on
Thursday? That gives you that one hour which might be enough for the opening
statement but maybe you need another one? But if you have things to attend to we
could start at half past nine and just add more time after four?
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ADV PAUL JOSEPH PRETORIUS SC: I would prefer the latter.
CHAIRPERSON: Half past nine.
ADV PAUL JOSEPH PRETORIUS SC: Yes please.
CHAIRPERSON: Okay then we will start at half past nine and then we will not – we will
not finish at four we will go at least up to five and then on Friday start early. You will
just have remind me on Thursday to indicate what time we would start on Friday. We
might have to start a little earlier but also it will depend on progress that we will have
made on – by end of the day on Thursday. We are going to adjourn the proceedings
then until half past nine on Thursday for the hearing of Mr McBride’s evidence. We
adjourn.

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ADV PAUL JOSEPH PRETORIUS SC: Thank you Chair.
REGISTRAR: All rise.
INQUIRY ADJOURNS TO 11 APRIL 2019

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