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CERTIFICATE OF VERACITY
I, the undersigned, hereby certify that, in as far as it is audible, the aforegoing is a
VERBATIM transcription from the soundtrack of proceedings, as was ordered to be
transcribed by Gauteng Transcribers and which had been recorded by the client

COMMISSION OF INQUIRY INTO STATE CAPTURE
HELD AT
CITY OF JOHANNESBURG OLD COUNCIL CHAMBER
158 CIVIC BOULEVARD, BRAAMFONTEIN

DATE OF HEARING:

24 JULY 2020

TRANSCRIBERS:

B KLINE; Y KLIEM; V FAASEN; D STANIFORTH

Page 2 of 74

24 JULY 2020 – DAY 237
P R O C E E D I N G S R E S U M E O N 2 4 J U LY 2 0 2 0
CHAIRPERSON:
e v e r y b o d y.
st a rt i n g

Good

morning

Ye s a re w e re a d y ?

late

b e c a u se

I

Mr

Soni,

good

morning

We l l I m u st j u st s a y t h a t w e

a r ri ve d

here

in

time

but

I

had

forgotten my mask and I had to go back to fetch one so that
i s w h y w e a re st a rt i n g a l i t t l e l a t e . Ye s. Ye s. P l e a s e p u t o n
y o u r m i c ro p h o n e . J a .
ADV SONI SC:

Chairperson we had reserved today for the

evidence of Judge Makhubele as you will know Chairperson
10

there are three witnesses who have already testified about
c o m p l a i n t s r e l a t i n g t o t h e w a y s h e d e a l t w i t h t h e m a t t e r.
I

understand

that

she

is

now

appointed

Legal

Representatives and they which to move an application.

I

have indicated they have – informed me about it yesterday
DCJ an application for a postponement.

I indicated that I

would oppose it on behalf of the commission.

But before I

set out the basis of the opposition perhaps my learned
friend Mr Shakoane who is her Counsel should address you.
CHAIRPERSON:
20

Okay let him come forward and then

somebody can sanitise or is it going to be more – okay I
think let him come forward or whoever is going to move the
application on behalf of Judge Makhubele.

If we hear you

with the mask on it is going to be fine to speak with it on
but we might struggle in which case you might wish to move
i t – s h i f t i t a b i t o r t a k e i t o ff f o r t h e t i m e b e i n g .
Page 3 of 74

24 JULY 2020 – DAY 237
A D V S H A K O A N E S C : T h a n k y o u C h a i r.
CHAIRPERSON:

Please just give me – just place yourself

on record properly first.
ADV SHAKOANE SC:

My initial is G, my surname is

Shakoane, S-h-a-k-o-a-n-e.
CHAIRPERSON: No, I think the mask is interfering.
A D V S H A K O A N E S C : O k a y.
C H A I R P E R S O N : J a . Yo u r i n i t i a l i s G ?
ADV SHAKOANE SC:
10

Initial is G, surname Shakoane, S-h-

a
CHAIRPERSON:

S-h-a

ADV SHAKOANE SC: K-o
CHAIRPERSON: Ah ha.
ADV SHAKOANE SC: A-n-e.
CHAIRPERSON: A-n-e.
A D V S H A K O A N E S C : Ye s S e n i o r C o u n s e l .
C H A I R P E R S O N : O k a y. Ye s M r S h a k o a n e .
ADV

SHAKOANE

SC:

Ye s .

I

am

with

Advocate

M

Mathaphuna.
20

CHAIRPERSON:

What is his – just give me the name

again.
ADV SHAKOANE SC: Initial is M.
CHAIRPERSON: M.
ADV SHAKOANE SC: The surname is Mathaphuna, M-a
CHAIRPERSON: M-a.
Page 4 of 74

24 JULY 2020 – DAY 237
J U D G E M A K H U B E L E : T- h - u s o r r y t - h - a
C H A I R P E R S O N : T- h - a
ADV SHAKOANE SC: P-h-u-n-a
CHAIRPERSON: M-a-t-h-a
ADV SHAKOANE SC: P-h-u
CHAIRPERSON: P-h-u?
A D V S H A K O A N E S C : Ye s . N - a .
CHAIRPERSON: N-a.
A D V S H A K O A N E S C : Ye s .
10

CHAIRPERSON: Okay thank you.
ADV SHAKOANE SC: Chair I stand here to…
CHAIRPERSON: And you will just have to raise your voice I
think you have a soft voice.
ADV SHAKOANE SC: Eish yes I will.
CHAIRPERSON: Ja.
ADV

SHAKOANE

SC:

I

stand

here

to

ask

for

a

postponement of the hearing of the evidence of Judge
Makhubele.

The reasons we already set out in a letter

which my learned friend Mr Soni had been favoured with. If
20

I m a y b e g l e a v e t o h a n d i t u p t o y o u M r C h a i r.
C H A I R P E R S O N : Ye s .
ADV SHAKOANE SC: Then I can address it.
C H A I R P E R S O N : Ye s n o t h a t i s f i n e .
ADV

SHAKOANE

SC:

The

position

Mr

Chair

is

that

basically the Judge was informed of the need for her to give
Page 5 of 74

24 JULY 2020 – DAY 237
evidence in terms of initially it was a communication after
the first.
CHAIRPERSON:

Yo u w i l l h a v e t o r e a l l y r a i s e y o u r v o i c e .

Yo u – I c a n n o t h e a r y o u p r o p e r l y.
ADV SHAKOANE SC:

I must raise my voice.

I will try to

raise the voice.
CHAIRPERSON: Ja.
ADV SHAKOANE SC:

The first two witnesses who testified

who was Dingiswayo and Ms Ngoye and she was informed
10

o f t h e f a c t t h a t s h e w o u l d h a v e t o t e s t i f y o r g i v e a ff i d a v i t .
Then

on

the

23rd

of

last

month

there

was

a

written

communication where she indicated she would be attending
to give evidence.

But there had not been any consultation

or meeting between her as yet and the evidence team. So…
CHAIRPERSON:

One second.

Where is the file with the

r u l e s a n d r e g u l a t i o n s ? Ye s c o n t i n u e .
ADV SHAKOANE SC:

Ye s .

Now on the 25th of last month

there was then a telephone communication between her and
the evidence leader where she was asked to come to a
20

meeting for a consultation on the 9th of this month.

And

then on – on the 9th the meeting did take place but before
then

I

should

mention

that

there

was

a

further

communication on Saturday the 27 June where she was
informed that there would be a further witness, Advocate
Botes SC who was to testify and she had requested that she
Page 6 of 74

24 JULY 2020 – DAY 237
be notified and be present to – when that evidence is
tendered so that she could have the opportunity to listen to
the evidence and cross-examine to the extent that it would
b e n e c e s s a r y.
H o w e v e r, o n t h e 2 9 t h s h e – s h e t h e n – s o r r y s h e d i d
not – was informed that – not on the 29th.

In fact, the

communication if I may put it to you it is in paragraph 6.
The communication was that on the 27th with the evidence
leader where she was informed that when checking the
10

schedules for the 29th of last month it was realised that
Advocate Botes SC would be testifying as a witness.
But

then

she

requested

the

notice

that

she

be

p r e s e n t w h e n h e t e s t i f i e d . U n f o r t u n a t e l y, t h a t w a s n o t d o n e
and she learnt later that Advocate Botes SC came on the 1st
of this month and testified. She could not be there to listen
or challenge his evidence.
So then on the – sorry – on the 29th an email was
sent advising that she would then require to change the –
opposition as she communicated on the 23 of June in view
20

of the developments that took place.
Now she needed to be able to address the evidence
involved and she had been of the mind that she might need
to have her own legal representatives.
And then she did not get a response.

The evidence

of the 1 July went through by Advocates Botes and then on
Page 7 of 74

24 JULY 2020 – DAY 237
the 6 of July she received the Notice of Set Down for the
24th and which was three days before the date on which she
had consult with the evidence team.
Then on the 9 July this month the meeting with the
evidence team took place.

During that meeting and owing

to the discussions that took place and the approach I
believe to her evidence she formed the view conclusively
that she would need her own legal representative to prepare
for her evidence and presentation which she communicated
10

to the evidence team.
Now on the – subsequent to that she had then
approached the attorneys on record now to be her legal
representatives.

A consultation took place on the 15th of

this month and after that consultation she was then advised
by the attorneys that she would need to secure the services
of counsel.
We were then contacted on the 20th in the afternoon
and on being informed on the dates that it is an urgent
matter the indication to them was that our available date to
20

c o n s u l t w o u l d h a v e b e e n t o d a y.

But obviously during the

telephone call we were not aware that it is a matter about
this commission.

But later when the instructions were

delivered in terms of brief – a brief on the 22nd in the
afternoon we then fully got to know that the matter is for
appearance at this commission and that already a date of
Page 8 of 74

24 JULY 2020 – DAY 237
set down for today has been communicated which meant
then that the consultation would not take place we had to
p r e p a r e f o r t h i s a p p e a r a n c e t o d a y.
I am aware of the fact that in the rules the – the
requirement is that if there is a substantive application that
sought to be made it has to be done seven days before.
But in these circumstances, it could not be feasible because
o f t h e s t a t e o f a ff a i r s a s I e x p l a i n e d .
Then when we got to know as I mentioned the first
10

initiative

that

was

suggested

was

that

we

have

communication with the evidence leader to see if we could
probably find each other or there could be some way of
accommodating the Judge.

But the indication when I spoke

to my learned friend Mr Soni was that he would not be in a
position to agree at that point and that we would then have
t o m a k e a r e q u e s t b e f o r e t h e – b e f o r e y o u M r C h a i r.
At the same time the leader of the evidence team
Advocate

Pretorius

SC

was

also

made

aware

of

the

situation who then suggested that probably if there could be
20

further discussions with my learned friend Mr Soni they
could continue but at the same time we needed to notify the
Secretariat as well.

Which was done through this letter to

indicate the predicament and initially on the 21st as you may
see Mr Chair on the paragraph 13 there was communication
to

the

Secretariat

by

email

from

Page 9 of 74

the

attorneys’

o ff i c e

24 JULY 2020 – DAY 237
indicating

that

the

Judge

would

be

requesting

the

postponement.
But then it was not agreed to at that time. That was
made known by a reply from the Secretariat on the 22nd
indicating that it is not agreed to.

Then – which led to the

events of yesterday in paragraph 14 there and 15.
Now in these circumstances Mr Chair the situation
a s I o b s e r v e i t f r o m t h i s f a c t i s t h a t e ff e c t i v e l y u p u n t i l t h e
9th of this month there had not been preparations as yet
10

insofar as the presentation of

the Judge’s evidence is

concerned.
They met on the 9th and before then she could not
come to any firm conclusion whether indeed it would be
necessary for her to have legal representation or not.

And

it only happened on the 9th when the meeting took place
which there and then she made it known and she indicated
the notice that had been given would be short notice.
But for reasons that have not been clear to me to
this stage is whether there were any reasons or what the
20

discussions actually there were which led to that request
not being addressed at that point.

To s a y i f y o u s a y i t i s

short notice then what is the suggestion, how much more
time could be allowed for you to prepare? That all seems to
have been missed.
Then secondly the observation I make also is that
Page 10 of 74

24 JULY 2020 – DAY 237
when one looking at that from the time when she obtained
the services of the attorneys of record to the 15th there
would be no more than five days after that meeting of the 9
July and having consulted on the 15th and then made the
decision that she would have to acquire the services of
counsel one had only the week of the 13th – I am sorry the
week of the 20th which is last week and the communication
was made first with Counsel on the 20th and which then led
to the indications.
10

Because one could not be available

immediately even to prior arrangement which had been
ensuing.
So in these circumstances Mr Chair I am aware that
in

terms

Rule

11

good

cause

has

to

be

shown

if

a

postponement had to be allowed.
Now on the facts and on the observations as I…
CHAIRPERSON: Well Mr Shakoane.
A D V S H A K O A N E S C : Ye s .
CHAIRPERSON:

What is the real reason why your client

wants a postponement?
20

ADV SHAKOANE SC:

She needs to have a consultation

with the legal team Mr Chair and then be able to …
CHAIRPERSON:

Why has she not had a full and proper

consultation with her legal team from the time she at least
k n e w t h a t t h e m a t t e r w o u l d b e c o m i n g u p t o d a y ? Yo u r – t h e
letter you have handed up says she received the notice of
Page 11 of 74

24 JULY 2020 – DAY 237
set down as it were on the 6 July 2020.
ADV SHAKOANE SC: That was – yes.
CHAIRPERSON:

And we do know that three days later on

the 9 July she had a consultation with Mr Soni the legal
team which was at her request. She had requested that she
at a consultation with the evidence leaders.

She indicated

in correspondence that she was making herself available.
A D V S H A K O A N E S C : Ye s .
CHAIRPERSON:
10

And why – why was a consultation with

her legal team not held within five days after the 6 July or
within five days after the 9 July after she decided she – that
she would need her own lawyer?
ADV SHAKOANE SC:

B a s i c a l l y, i t w i l l b e t h e 9 J u l y M r

Chair and as I…
CHAIRPERSON: And remember we are – we are not talking
here about a lay person.
A D V S H A K O A N E S C : Ye s t r u e .
CHAIRPERSON:

We are now not even talking about an

attorney or advocate we are talking about a Judge.
20

A D V S H A K O A N E S C : Ye s t r u e . Tr u e . B u t
CHAIRPERSON:
instructed?

So

when

–

when

were

the

attorneys

What was the date when the attorneys were

instructed?
ADV SHAKOANE SC:

It is not specified here in the letter

but I can…
Page 12 of 74

24 JULY 2020 – DAY 237
CHAIRPERSON: It is not clear here.
ADV SHAKOANE SC:

I can establish.

If I may just have a

moment Mr Chair?
CHAIRPERSON:

Ja.

But you see I am surprised even by

the fact that this basic information is not at hand because
when you apply for a postponement one of things you have
to satisfy the forum with is that you have acted diligently to
try and avoid a postponement.
A D V S H A K O A N E S C : Ye s .
10

CHAIRPERSON:
been

r e a d y.

So this is information that should have
So

when

–

when

were

the

attorneys

instructed?
ADV SHAKOANE SC:

I am informed it is on the 15th when

the – when the consultation actually also took place.

Now

which – which reasonably will be within the range of more
or less the five days.
CHAIRPERSON:

Ye s .

Now I – the letter I think it is the

same letter that you have handed up here.
A D V S H A K O A N E S C : Ye s .
20

CHAIRPERSON:

Wa s m a d e a v a i l a b l e t o m e t h i s m o r n i n g

through the commission and I asked my Registrar to ask the
acting Secretary of the commission to phone the lawyers or
Judge Makhubele and to pass on the message to her that
any application for a postponement must be made at the
hearing and that she must be present at the hearing so that
Page 13 of 74

24 JULY 2020 – DAY 237
if the application is refused we can go on.

I was informed

that that message was passed on to her lawyers and they
indicated that they would talk to her and talk to Counsel.

I

assume it was the attorney who was phoned and I was
subsequently given a report back that the lawyers – her
lawyers said
1. They were going to be at the hearing but she would
not be at the hearing.
Will you confirm that that is so?
10

ADV SHAKOANE SC:

Ye s l e t m e j u s t c o n f i r m t h a t ?

Mr

Chair I was telephoned as well in – this morning more or
less the same time that the evidence – the Secretariat will
have contacted them.

I just wanted to confirm certain

things because when I was contacted the question, I asked
was whether she is available because yesterday I got the
understanding that she was not around.
Now the – I was then informed the following which is
w h a t I j u s t h a v e t o c o n v e y n o w.

That she had been at

Mokopane and when she was travelling through to – to
20

come to Pretoria he had a – a puncture – a tyre puncture
and the vehicle lost control. But she is not injured it is just
trauma.

And they had to ask family members to go – come

fetch where she was and they only travelling down to
Pretoria with her this morning.
So that was what was also when I discussed with the
Page 14 of 74

24 JULY 2020 – DAY 237
attorney conveyed to the Secretariat.
CHAIRPERSON:

Let me understand that.

She had a tyre

p u n c t u r e s o m e t i m e y e s t e r d a y.
A D V S H A K O A N E S C : Ye s , t h a t i s – I t h i n k i t w a s y e s t e r d a y
– it must have been in the late afternoon.
CHAIRPERSON: Later afternoon.
ADV SHAKOANE SC:

When they were supposed to come

down to this thing.
CHAIRPERSON:
10

Wa s s h e o n h e r w a y f r o m P o l o k w a n e t o

Pretoria?
ADV SHAKOANE SC: From Mokopane.
CHAIRPERSON: Sorry?
ADV SHAKOANE SC: From Mokopane.
C H A I R P E R S O N : O h o k a y.
A D V S H A K O A N E S C : Ye s .
CHAIRPERSON: And – and then what happened? Is that –
is that connected with her not being here or what is the
position?

20

ADV SHAKOANE SC:

I – I – when I asked if she could be

available

when

to

come

–

they

informed

me

that

that

h a p p e n e d a n d t h e t r a u m a t h a t s h e m i g h t h a v e s u ff e r e d a n d
the fact that she is only arriving in Pretoria this morning the
sense I gained is that she probably would need to consult a
doctor or so because that is usually what happens. But I did
n o t g e t t h e f u l l d e t a i l s i n r e s p e c t o f t h a t M r C h a i r.
Page 15 of 74

24 JULY 2020 – DAY 237
CHAIRPERSON: Before we proceed.
A D V S H A K O A N E S C : Ye s .
CHAIRPERSON:

I am going to ask you to contact your

client.
A D V S H A K O A N E S C : Ye s .
CHAIRPERSON:

So that we – we know what the position

is.
A D V S H A K O A N E S C : I w i l l – I w i l l M r C h a i r.
CHAIRPERSON:
10

For – I wanted her to be here because we

do not know what the outcome of the application for a
postponement is going to be.
ADV SHAKOANE SC: Hm.
CHAIRPERSON:

So that if it is refused, she is available

a n d w e c a n p r o c e e d . I k n o w t h a t s h e i s n o t w o r k i n g t o d a y.
ADV SHAKOANE SC: Hm.
CHAIRPERSON:

Because

I

did

speak

to

the

Judge

President to her Judge President some weeks back once we
knew the date to say to the Judge President this is the date
that has been set aside for your Judge to appear before the
20

c o m m i s s i o n s o p l e a s e d o n o t g i v e h e r a n y w o r k o n t h a t d a y.
A D V S H A K O A N E S C : Ye s .
CHAIRPERSON:

And the Judge President told me that

today falls within the court recess. So – but he also said he
would make sure that he did not give her any recess duty to
c l a s h w i t h t o d a y.

H e e v e n s a i d h e co u l d . . . h e w o u l d ke e p
Page 16 of 74

24 JULY 2020 – DAY 237
h e r o u t o f d u t y f o r M o n d a y j u st i n c a s e w e d o n o t f i n i s h
t o d a y a n d w e n e e d h e r, w h i c h I a p p r e ci a t e .

So I know that

s h e i s ce rt a i n l y n o t o n d u t y.
A n d u p t o n o w, t h e b a si s f o r t h e a p p l i c a t i o n f o r a
p o st p o n e m e n t i s n o t t h a t sh e i s si c k.

S o I w o u l d l i k e yo u t o

m a k e c o n t a ct w i t h h e r.
F i r st l y, b e c a u s e I m a y n e e d h e r t o e x p l a i n s o m e o f t h e
t h i n g s i n r e g a r d t o t h e a p p l i c a t i o n f o r a p o st p o n e m e n t u n d e r
oath.
10

T h e r e a re c e rt a i n g a b s i n t h e l e t t e r, y o u kn o w.

Yo u . .

t h e r e i s n o a ff i d a vi t i n s u p p o rt o f h e r a p p l i c a t i o n f o r a
p o st p o n e m e n t a n d t h e r e a r e t h i n g s t h a t m a y n e e d t o b e
cl a ri f i e d .
And it may well be that I would need her to take the
w i t n e s s st a n d f o r p u r p o s e s o f a n s w e r i n g , g i vi n g cl a ri f i c a t i o n
of

ce rt a i n

i s su e s

relating

to

her

a p p l i ca t i o n

for

a

p o st p o n e m e n t .
B u t a l s o a p a rt f r o m t h a t .

I n c a s e t h e a p p l i ca t i o n i s

re f u s e d , t o b e a b l e t o b e a v a i l a b l e .
20

B u t l e t u s. . . I t h i n k w e

n e e d t o t a ke a n a d j o u r n m e n t t o e n a b l e y o u t o b e i n t o u c h
w i t h h e r a n d t h e n w e c a n r e su m e a n d t h e n I c a n . . . w e c a n
take it from there.
A D V S H A K O A N E : Ye s, M r C h a i r.
CHAIRPERSON:
f i f t e e n m i n u t e s.

O k a y.

So we are going to adjourn for

On my watch, that will take us to five to
Page 17 of 74

24 JULY 2020 – DAY 237
eleven.
A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : We a d j o u r n .
A D V S H A K O A N E : S o i s t h e C h a i r. . . i f . . .
C H A I R P E R S O N : H ’ m ? Ye s?
A D V S H A K O A N E : I j u st w a n t t o cl a ri f y . . . [ i n t e r v e n e s]
CHAIRPERSON: Ja.
A D V S H A K O A N E : . . . i f t h e r e a r e a n y s p e ci f i c m a t t e r s , I m u st
e st a b l i sh f r o m h e r ?
10

C H A I R P E R S O N : N o , n o t a p a rt f ro m j u st f i n d i n g o u t . . . w e l l , I
w a n t yo u t o f i n d o u t h e r si t u a t i o n a b o u t c o m i n g h e r e .
A D V S H A K O A N E : Ye s.
CHAIRPERSON:

Whether she can come here because one,

I w o u l d l i ke h e r t o b e h e re s o t h a t w h a t e v e r I m i g h t n e e d t o
h a ve cl a r i f i e d u n d e r o a t h , sh e w o u l d b e a v a i l a b l e t o s u p p o rt
h e r a p p l i c a t i o n f o r t h e p o st p o n e m e n t .
But also, if her application is refused, I would like to be
a b l e t o p ro c e e d . S o f i n d o u t w h a t h e r p o si t i o n i s. B u t t h a t i s
what I would like to do.
20

A D V S H A K O A N E : Th a n k y o u , C h a i r.
C H A I R P E R S O N : O k a y. A l ri g h t . We a d j o u r n .
I N Q U I RY A D J O U R N S:
I N Q U I RY R E S U M E S :
C H A I R P E R S O N : J a , j u st s w i t ch o n y o u r m i c.
ADV SHAKOANE:

T h a n k y o u , M r C h a i r.
Page 18 of 74

I . . . s o r ry.

I have

24 JULY 2020 – DAY 237
made

c o n t a ct

with

Judge

Makhubele

and

on

the

f i r st

q u e st i o n , sh e i n f o r m s m e t h e a c c i d e n t o c c u r r e d a t a b o u t
1 9 : 3 0 i n t h e e v e n i n g . Ye s.
CHAIRPERSON:

S o w a s i t a n a c ci d e n t o r t h e t y re . . . t h e

a c ci d e n t s h e r e f e r s t o i s t h e t y re p u n ct u r e ?
ADV SHAKOANE:

To m e i t . . . I h a v e b e e n s h o w n t h e

p i ct u r e s.
CHAIRPERSON: Ja?
ADV SHAKOANE:
10

To m e i t l o o k s l i k e i t r e s u l t e d i n a n

a c ci d e n t b e c a u s e o f t h e d a m a g e t h a t I se e .
C H A I R P E R S O N : H ’ m . O k a y. H ’ m .
A D V S H A K O A N E : B u t t h e a t t o r n e y s a y s h e c o u l d f o r w a rd t o
t h e s e c r e t a ri a t t h e p i ct u r e s . . . [ i n t e r v e n e s]
C H A I R P E R S O N : Ye s.
A D V S H A K O A N E : . . . i f n e c e s s a r y.
CHAIRPERSON: I think that should be done.
A D V S H A K O A N E : Ye s. N o w, t h e n t h e p u n ct u r e M r C h a i r, i s
t h a t a ri si n g f r o m t h i s i n ci d e n t , s h e i s n o t e m o t i o n a l l y i n a
st a t e t o b e a b l e t o a t t e n d o r t o t e s t i f y a s o f t o d a y a s w e si t

20

here.
CHAIRPERSON:

S o . . . b u t j u st t o g e t t h e f a ct s ri g h t .

In

t e r m s o f w h a t s h e t o l d y o u . . . [ i n t e r v e n e s]
A D V S H A K O A N E : Ye s ?
CHAIRPERSON:

. . . t h e r e w a s a t y re p u n ct u r e .

t y re p u n ct u r e . . . [ i n t e r v e n e s]
Page 19 of 74

She had a

24 JULY 2020 – DAY 237
A D V S H A K O A N E : Ye s.
CHAIRPERSON:

. . . a r o u n d h a l f - p a s t s e v e n l a st e v e n i n g .

Is

t h a t ri g h t ?
ADV SHAKOANE:

Ye s, I t h i n k t h e . . . p ro b a b l y t h e b e st w a y,

i t w o u l d b e a t yr e b u r st , p r o b a b l y.
C H A I R P E R S O N : S o rr y ?
ADV SHAKOANE:

I a m s a yi n g a s I t h i n k a n d l o o ki n g a t t h e

p i ct u r e s, t h e p r o p e r w o r d i n g w o u l d b e a t y r e b u r st .
C H A I R P E R S O N : A t yr e b u r st ?
10

A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : O k a y.
ADV SHAKOANE: H’m.
CHAIRPERSON:

A n d f r o m w h a t s h e t o l d y o u - I a m l e a vi n g

o u t t h e p i ct u r e s - f ro m w h a t s h e t o l d y o u , d i d t h e c a r g e t o u t
o f t h e r o a d o r a n y t h i n g l i ke t h a t a s a r e s u l t o f t h a t ?
A D V S H A K O A N E : Ye s, i t s o u n d s s o b e c a u s e sh e s a y s e v e n
t h e s u s p e n si o n c o l l a p s e d .
CHAIRPERSON: H’m.
A D V S H A K O A N E : Ye s.
20

CHAIRPERSON:

A n d t h e r e a re p i ct u r e s a v a i l a b l e o f t h e

car?
A D V S H A K O A N E : Th e r e a r e p i ct u r e s.
CHAIRPERSON: Oh.
A D V S H A K O A N E : Ye s.
CHAIRPERSON:

Are they in a position to be handed up or
Page 20 of 74

24 JULY 2020 – DAY 237
not?
ADV SHAKOANE:

H e sa y s h e c a n f o r w a r d t h e m .

I a m s u re

h e ca n s h o w t h e m o n t h e p h o n e a s w e l l .
C H A I R P E R S O N : We l l , t h e y c a n s e n d t o M r S o n i b e c a u se h e
m u st s e e t h e m f i r st a n d t h e n m a y b e a rr a n g e m e n t s c a n b e
m a d e t o i m m e d i a t e l y p ri n t w h i l e w e c o n t i n u e .
A D V S H A K O A N E : Th a n k y o u , M r C h a i r.
CHAIRPERSON:

J a , I t h i n k h e r l a w y e r s m u st b e i n t o u c h

w i t h M s R a n g a t a w h o ca n g i ve t h e m t h e i n f o r m a t i o n a s t o
10

w h a t n u m b e r t o s e n d t h e p i ct u re s t o a n d t h e n s h e w i l l t r y a n d
s e e , w h i l e w e co n t i n u e , w h e t h e r s h e c a n h a v e t h e m p r i n t a n d
t h e n t h e y c a n b e h a n d e d u p t o m e i n p ri n t e d f o r m .
A D V S H A K O A N E : Th a n k y o u , M r C h a i r.
CHAIRPERSON:

O k a y. A l ri g h t .

So she says as a result of

w h a t h a p p e n e d y e st e r d a y w h e n t h e r e w a s a t y r e p u n c t u r e o r
a t yr e b u r st , s h e i s n o t e m o t i o n a l l y i n a p o si t i o n t o b e h e r e ?
A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : To d a y ?
A D V S H A K O A N E : Ye s.
20

CHAIRPERSON:

But does she indicate when she feels she

might be emotionally fine to appear?
A D V S H A K O A N E : I d i d n o t . . . [ i n t e r v e n e s]
C H A I R P E R S O N : Yo u d i d n o t . . . [ i n t e r v e n e s]
A D V S H A K O A N E : . . . a s k h e r s p e ci f i c a l l y . . . [ i n t e r v e n e s]
C H A I R P E R S O N : O k a y. N o , t h a t i s f i n e .
Page 21 of 74

24 JULY 2020 – DAY 237
A D V S H A K O A N E : Ye s.
CHAIRPERSON:

D i d sh e i n d i c a t e w h e t h e r s h e d i d h a v e t o

g o t o a d o ct o r o r n o t ?
ADV

SHAKOANE:

I

did

not

ask

that

question

but

. . . [ i n t e r v e n e s]
C H A I R P E R S O N : Ye s, y e s.
A D V S H A K O A N E : . . . i f I u n d e r st a n d t h e p o s i t i o n . I c a n o n l y
g u e s s . . . [ i n t e r v e n e s]
CHAIRPERSON: Ja.
10

A D V S H A K O A N E : . . . t h a t a s a p e r s o n , a n d f o r t h a t m a t t e r, a
l a d y t h a t g e t s i n v o l v e d i n s u c h a n a c ci d e n t i n t h e e v e n i n g ,
e v e n i f t h e y m a y n o t h a v e g o n e t o a d o ct o r, i t t r a u m a t i s e d
t h e m e n o u g h f o r t h e m n o t b e i n a st a t e .
CHAIRPERSON:

Ja-no, what I wanted.

I j u st w a n t e d t o g e t

t h e f a ct s ri g h t , w h e t h e r s h e f e l t s o t r a u m a t i s e d t h a t s h e d i d
g o t o a d o ct o r o r s h e m i g h t n o t h a v e g o n e t o a d o ct o r.

But

n e ve rt h e l e s s, s h e f e e l s t r a u m a t i s e d .
A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : F r o m w h a t yo u h a v e b e e n t o l d , n o t h i n g h a s
20

b e e n s a i d a b o u t g o i n g t o t h e d o ct o r ?
ADV SHAKOANE: No, I do not think as yet she has been to
a d o ct o r.
C H A I R P E R S O N : Ye s.
A D V S H A K O A N E : Ye s.
CHAIRPERSON:

Ye s.

O k a y.

L e t u s t a l k a b o u t t h i s m a t t e r.

Page 22 of 74

24 JULY 2020 – DAY 237
Yo u s e e - I a m g o i n g t o l e a ve o u t t h e i s s u e o f w h a t
h a p p e n e d y e st e r d a y, b e c a u s e t h e a p p l i c a t i o n w a s n o t b a s e d
o n t h a t b u t t h a t h a s n o w c o m e t o . . . [ i n t e r v e n e s]
ADV SHAKOANE: It is intervening.
CHAIRPERSON: ...our attention.
A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : I t i s j u st t h a t o n e w o u l d h a v e e x p e c t e d t h a t
s h e w o u l d h a v e i n f o r m e d h e r l a w y e r s a s s o o n a s p o s si b l e
that:
10

“I k n o w y o u a r e g o i n g t o m o v e a n a p p l i ca t i o n f o r t h e

p o st p o n e m e n t o f m y h e a ri n g b u t a p a rt f r o m o r i n a d d i t i o n t o
w h a t e v e r r e a s o n s y o u h a ve g i v e n h e r e t o a s w h a t h a s
h a p p e n e d , e m o t i o n a l l y I w o u l d n o t b e a b l e t o c o m e ”. S o t h a t
i t c o u l d h a v e b e e n o n e o f t h e r e a s o n s g i ve n . . . [ i n t e r v e n e s]
A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : . . . ri g h t f r o m t h e st a rt .
A D V S H A K O A N E : I n d e e d , ye s.
CHAIRPERSON:

Ja, ja.

Now you see, and I will hear what

M r S o n i h a s t o s a y. I t h i n k J u d g e M a k h u b e l e h a s k n o w n t h a t
t h e C o m m i s si o n w o u l d w a n t h e r t o c o m e a n d g i v e e vi d e n c e
20

f o r a t l e a st a n u m b e r o f m o n t h s.

M s M a rt h a N g o y e f r o m

P R A S A g a v e e vi d e n ce , I t h i n k e a rl y i n M a r c h .

It might have

b e e n t h e f i r st w e e k.
A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : I a m n o t su r e b u t e a rl y i n M a r c h .
A D V S H A K O A N E : I u n d e r st a n d s o .
Page 23 of 74

24 JULY 2020 – DAY 237
CHAIRPERSON:

S o m e t i m e b e f o r e t h a t , i n t e rm s o f t h e

ru l e s, s h e . . . J u d g e M a k h u b e l e w o u l d h a ve b e e n s e r v e d w i t h
a

notice

in

terms

of

Rule

3 (3 )

of

the

Rules

of

the

C o m m i s si o n . . . [ i n t e r v e n e s]
ADV SHAKOANE: H’m.
CHAIRPERSON:

. . . w h i c h w o u l d h a v e g i v e n h e r M s N g o y e ’s

a ff i d a vi t o r t h e p o rt i o n s t h a t r e l a t e t o h e r . . . [ i n t e r v e n e s]
A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : . . . t o i m p l i c a t e h e r . . . [ i n t e r v e n e s]
10

A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : . . . t o s a y, “ H e r e i s a w i t n e s s w h o i m p l i c a t e s
y o u i n s o m e w r o n g d o i n g ”.

A n d i n t e r m s o f R u l e 3 ( 3 ), t h a t

n o t i ce w o u l d h a ve e x p l a i n e d h e r ri g h t s t o J u d g e M a k h u b e l e .
A n d t h o s e ri g h t s i n cl u d e t h a t i f sh e w a n t e d t o d i s p u t e
t h e e vi d e n c e o f M s N g o y e , s h e c o u l d a p p l y f o r l e a ve t o
a d d u c e e vi d e n c e .
A l s o , i f s h e w a n t e d t o c r o s s- e x a m i n e M s N g o y e , s h e h a d
a ri g h t t o a p p l y f o r l e a v e t o c ro s s -e x a m i n e h e r a n d t h a t
n o t i ce w o u l d h a v e t o l d h e r t h a t s h e w a s r e q u i r e d t o d o t h o s e
20

t h i n g s w i t h i n 1 4 - d a y s.
ADV SHAKOANE: H’m.
C H A I R P E R S O N : A s f a r a s I k n o w, s h e d i d n o t e l e ct t o m a k e
a n y s u ch a p p l i c a t i o n i n t e r m s o f t h e r u l e s.

She was in

c o r r e s p o n d e n c e w i t h t h e C o m m i s si o n b u t a s f a r a s I kn o w
s h e c e rt a i n l y d i d n o t a p p l y f o r l e a v e t o c ro s s - e x a m i n e M s
Page 24 of 74

24 JULY 2020 – DAY 237
N g o y e o r t o a d d u c e e vi d e n ce i n o r d e r t o c h a l l e n g e h e r
e vi d e n c e . [ c o u g h i n g ] E x c u se m e .
T h e s a m e p r o c e d u r e w o u l d h a v e h a p p e n e d w i t h re g a r d
t o t h e a ff i d a vi t o f M r D i n g i s w a y o f r o m P R A S A .
well

be

that

m i s s. . .

Judge

Makhubele

was

And it may
given

those

a ff i d a vi t s o f M s N g o ye a n d M r D i n g i s w a y o a t t h e sa m e t i m e .
I d o n o t k n o w, b u t ce rt a i n l y s h e w o u l d h a v e b e e n s e r v e d w i t h
t h a t a ff i d a vi t a s w e l l .
A n d t h a t w o u l d h a ve b e e n a l s o i n F e b r u a r y o r l a t e st
10

e a rl y M a r c h a n d s h e w o u l d h a v e a l s o r e p o rt t h e s a m e
s u b m i s si o n a b o u t h e r ri g h t s.
And then, I think, she would have received the same
ki n d o f n o t i c e i n re g a r d t o M r A ch m a t w h o h a s n o t t e st i f i e d
b u t h i s a ff i d a v i t w a s su b m i t t e d .

It was intended that he

w o u l d t e st i f y a t a c e rt a i n st a g e .
A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : A n d i t m a y w e l l b e t h a t h e m i g h t st i l l t e st i f y
b u t . . . a n d o f co u r se , t h e re w a s t h e a ff i d a vi t o f A d v o ca t e
B o t e s S C a n d t h e r e w a s t h e a ff i d a vi t o f M r M o g a s h o a .
20

A D V S H A K O A N E : M r M o g a s h o a , y e s.
CHAIRPERSON:

T h e a t t o r n e y.

w e re s e r v e d t o h e r.

A n d a l l o f t h o se a ff i d a vi t s

And I believe that - and Mr Soni can

h e l p y o u – I b e l i e v e t h a t a t so m e s t a g e , m a yb e i n F e b r u a r y
o r m a yb e i n M a r c h o r e ve n a f t e r, t h e r e w a s c o m m u n i c a t i o n
f ro m

the

legal

team

to

h e r,

asking

Page 25 of 74

her

to

f u rn i s h

the

24 JULY 2020 – DAY 237
C o m m i s si o n

with

an

a ff i d a vi t ,

re s p o n d i n g

to

these

a l l e g a t i o n s, t h e s e a ff i d a v i t s.
A n d a s f a r a s I r e m e m b e r, s u b j e ct t o o n e q u a l i f i c a t i o n , I
d o n o t t h i n k t h a t s h e h a s f u r n i s h e d a n y a ff i d a vi t i n r e s p o n s e
t o su c h a re q u e st .
N o w, I a m s a yi n g su b j e ct t o o n e q u a l i f i c a t i o n b e c a u s e I
t h i n k a t so m e st a g e , e a rl y. . . o r a t so m e st a g e i n J u n e o r
e a rl y J u l y, sh e d i d co r r e sp o n d w i t h t h e C o m m i s si o n a n d
t h e r e w a s a n a ff i d a vi t , I t h i n k i f I a m n o t m i st a k e n , w h i c h
10

d e a l t w i t h c e rt a i n i s s u e s.
One of which was what Mr Botes had said about her but
I t h i n k s h e m e n t i o n s. . . s h e m a d e m e n t i o n . . . s h e m a y b e
m e n t i o n i n g c e rt a i n o t h e r t h i n g s r e l a t i n g t o M s N g o y e a n d M r
D i n g i s w a y o i n t h a t a ff i d a vi t .
S o s h e m u st h a v e h e a r d . . . sh e h a s kn o w n t h a t i t w a s
l i k e l y t h a t s h e w o u l d b e a s k e d t o c o m e a n d g i v e e vi d e n ce . I t
w a s a q u e st i o n o f w h e n .
ADV SHAKOANE: H’m.
CHAIRPERSON:

20

She has known what they would... in

w h a t . . . s h e h a s k n o w n w h i c h t h e w i t n e s se s a r e w h o s e e m t o
i m p l i c a t e h e r i n s o m e t h i n g s.

S h e h a s h e a r d t h e i r a ff i d a vi t s

a n d i f s h e w a n t e d t o e v e n se e t h e t ra n s c ri p t o f t h e e vi d e n ce ,
she would have been given that.
N o w, a c c o r d i n g t o t h i s l e t t e r t h a t y o u h a v e h a n d e d u p ,
she became aware on the 6th of July that the date that had
Page 26 of 74

24 JULY 2020 – DAY 237
b e e n d e t e r m i n e d f o r h e r t o a p p e a r i s t o d a y.
N o w, s h e h a d a c o n su l t a t i o n o n t h e 9 t h o f J u l y w i t h t h e
C o m m i s si o n ’s l e g a l t e a m . S h e n e v e r b r o u g h t a n y a p p l i c a t i o n
u n t i l t o d a y f o r t h e p o st p o n e m e n t o f t h e d a t e o f h e r h e a ri n g
a n d i t s e e m s t o m e o r t h a t i f s h e o n l y. . .
I f s h e i n st r u ct e d h e r a t t o r n e y s o n t h e 1 5 t h o f J u l y, s h e
allowed a whole week to lapse after she had become aware
o f t h e d a t e a n d s h e k n e w t h a t t h e d a t e w a s n o t f a r.
And then from the 15th of July to, I think before the
10

2 1 s t o f J u l y, t h e r e w a s n o i n d i ca t i o n t h a t t h e re w o u l d b e a n
a p p l i ca t i o n f o r a p o st p o n e m e n t .
I f I a m n o t m i st a k e n , y o u r l e t t e r m a k e s s o m e i n d i c a t i o n .
I t i s e i t h e r t h e 2 1 s t o f t h e 2 2 n d w h e n . . . [ i n t e r v e n e s]
ADV SHAKOANE: It is the 21st.
CHAIRPERSON: 21st?
A D V S H A K O A N E : Ye s.
CHAIRPERSON:

J a , t h e f i r st l e t t e r w a s i n d i ca t e d .

One

would have thought that the time would have been used even
to
20

put

the

application

as

a

su b st a n t i v e

application

on

a ff i d a vi t , w h i c h h a s n o t h a p p e n e d .
A n d o f c o u r s e , a s I s a i d e a rl i e r o n , w e a r e n o t d e a l i n g
h e r e w i t h j u st a l a y p e r s o n .
p r e si d e n t o r a n a d v o ca t e .

We a re n o t d e a l i n g w i t h a

We a r e d e a l i n g w i t h a h i g h c o u rt

judge.
A D V S H A K O A N E : Ye s.
Page 27 of 74

24 JULY 2020 – DAY 237
CHAIRPERSON:

S h e k n o w s h o w i m p o rt a n t i t i s t o a ct

q u i c kl y i f y o u a r e e xp e ct e d t o a p p e a r i n co u rt o r i n a
t ri b u n a l , i n a f o r u m . H o w i m p o rt a n t i t i s t o a ct q u i c k l y i f y o u
a r e n o t g o i n g t o b e a b l e t o a p p e a r.

I f y o u a r e s e e ki n g a

p o st p o n e m e n t a p p l i c a t i o n .
She

also

knows also the

i m p o rt a n ce

c o u n s e l w h o i s a v a i l a b l e o n t h a t d a y.

o f l o o ki n g

for

She knows of the

i m p o rt a n ce o f g e t t i n g co u n s e l e a rl y, y o u kn o w ?
A D V S H A K O A N E : Ye s.
10

CHAIRPERSON:
k n o w.

And getting counsel who is available, you

And not getting counsel who is not available.

I will

h e a r w h a t M r S o n i s a y s, b u t I w a n t t o m a k e t h i s r e m a r k s t o
y o u so t h a t y o u c a n a d d r e s s t h e m i f yo u w i s h t o b e ca u s e
they

ca u s e

me

s e ri o u s

concern

about

her

and

her

a p p l i ca t i o n .
A D V S H A K O A N E : Ye s.
CHAIRPERSON:

Th a t w h e n s h e h a s h a d a s m u c h t i m e a s

s h e h a s h a d , s e v e r a l m o n t h s, s h e c o m e s a t t h e l a st m i n u t e
a n d a s k t o p o st p o n e t h e h e a ri n g o f h e r e vi d e n ce .
20

Ask for a

p o st p o n e m e n t o f t h e h e a ri n g o f h e r e vi d e n c e a n d t h e r e f o r e . . .
w h i c h w o u l d t h e r e f o r e m e a n t h a t t h i s C o m m i s si o n . . . o r f o r
t h i s C o m m i s si o n t h i s w h o l e d a y i s w a st e d .
A D V S H A K O A N E : Ye s.
CHAIRPERSON:
about

everybody

We d o n o t h a v e a l o t o f t i m e a n d I t h i n k
in

the

country

Page 28 of 74

knows

that.

We

are

24 JULY 2020 – DAY 237
o p e r a t i n g u n d e r a c o u rt o r d e r t h a t s a y s w e m u st f i n i s h o u r
w o r k w i t h i n a c e rt a i n t i m e .
A n d a s I s a y, s h e h a s k n o w n f ro m p r o b a b l y F e b r u a r y,
e a rl y M a r c h t h a t t h e C o m m i s si o n i s l i k e l y t o w a n t h e r t o
c o m e h e r e a t s o m e st a g e .
S h e h a s b e e n f u r n i s h e d w i t h a l l t h e a ff i d a vi t s, a s f a r a s I
u n d e r st a n d t h e p o si t i o n . A n d s h e h a s h a d t h e o p p o rt u n i t y t o
re s p o n d t o t h o s e a ff i d a vi t s a n d p u t h e r si d e o f t h e st o ry.
A n d s u b j e ct t o t h e o n e q u a l i f i ca t i o n I s a i d a b o u t t h i s
10

o t h e r a ff i d a vi t , s h e h a s n o t d e a l t w i t h t h e a ff i d a vi t s i n t h e
m a n n e r t h a t o n e w o u l d h a v e e x p e c t e d d e sp i t e h a vi n g a l l t h e
time.
A n d a s I u n d e r st a n d t h e p o si t i o n .

She has been in

re c e s s b e c a u se i t h a s b e e n c o u rt re c e s s f o r a n u m b e r o f
w e e k s. I t h i n k t h e c o u rt re c e s s i s c o m i n g t o a n e n d . Ma y b e
o n M o n d a y. M a y b e t h e y a re r e s u m i n g o n M o n d a y.
A n d i f I st i l l re c a l l c o rr e ct l y, t h e co u rt r e c e s s i n t h e h i g h
c o u rt i n w i n t e r i s a b o u t a m o n t h o r m a y b e t h r e e w e e k s. I a m
not sure.
20

S o s h e h a s h a d a l o t o f t i m e , y o u kn o w. I t i s c o n c e r n i n g .
That is what I want to say but you may wish to address any
o f t h e s e c o n ce r n s I a m r a i si n g b e f o r e I a l l o w M r S o n i .
ADV SHAKOANE:

Ye s.

O b vi o u sl y, M r C h a i r w i t h t h e

l i m i t a t i o n s u n d e r w h i c h w e c a m e i n t o a s si st , o n e i s e n t e r e d
i n a d d r e s si n g t h i s .
Page 29 of 74

24 JULY 2020 – DAY 237
C H A I R P E R S O N : Ye s.
ADV SHAKOANE:

B u t t o st a rt w i t h .

From the little that I

g a i n e d , e s p e ci a l l y t h ro u g h a t e l e p h o n e c o n s u l t y e st e rd a y, i s
that there had been counsel and attorneys who had been
a s si st i n g b e f o r e a n d t h e c u rr e n t a t t o r n e y s h a d n o t b e e n
i n v o l v e d a t t h a t st a g e .
CHAIRPERSON:

We l l , I a m u n d e r t h e i m p re s s i o n t h a t t h e y

w e re i n v o l v e d u n l e s s t h e r e a r e . . . [ i n t e r v e n e s]
A D V S H A K O A N E : Th e y . . . [ i n t e r v e n e s]
10

CHAIRPERSON: ...two law firms with the same name.
ADV SHAKOANE:

Th a t i s t h e n e xt w o r d s w h i c h I w a n t e d t o

m e n t i o n . T h e y g o t . . . [ i n t e r v e n e s]
C H A I R P E R S O N : Ye s, y e s.
A D V S H A K O A N E : . . . t h e y g o t t e rm i n a t e d a t s o m e p o i n t .
C H A I R P E R S O N : Ye s, i t w a s t e r m i n a t e d a t s o m e p o i n t .
A D V S H A K O A N E : Ye s.
C H A I R P E R S O N : Ye s.
ADV SHAKOANE:

S o t h e r e w e r e a t t o r n e y w h o w e re t h e n

involved with counsel, Lebala SC, but then it came to path
20

t h a t h e w a s s a i d t o b e c o n f l i ct e d b e c a u se h e i s a l s o c o u n s e l
f o r P R A S A . S o h e t h e n h a d t o w i t h d r a w.
A n d t h e a t t e m p t s t o f i n d a l t e r n a t i v e c o u n s e l w e re n o t
s u c c e s sf u l b e c a u s e o n e co u n s e l w a s f o u n d i n P r e t o ri a w h o
later

d e ci d e d

sh o u l d

not

be

able

mandate.
Page 30 of 74

to

continue

with

the

24 JULY 2020 – DAY 237
H e n c e , t h e f a l l b a c k t o t h e c u rr e n t a t t o r n e y s.

And I am

t o l d s o m e co m m u n i c a t i o n i n i t i a l l y h a p p e n e d a r o u n d t h e 7 t h .
I t w o u l d h a ve b e e n t e l e p h o n i c o r s o w i t h o n e o f t h e a t t o r n e y s
b u t t h e n t h e y h a d t o s a y, “ We a r e a v a i l a b l e f o r a p ro p e r
c o n su l t a t i o n w i t h y o u o n t h e 1 5 t h s o t h a t w e c a n r e a l l y h a v e
a p i ct u re w h a t i s h a p p e n i n g a n d w h a t h a d h a p p e n e d a t t h e
C o m m i s si o n w h e r e y o u w e re c o n s u l t e d w i t h t h e E vi d e n ce
Te a m a n d t h e n w e c a n m a k e o u t w h e t h e r w e c a n st ra i g h t
a w a y a s s i st o r w e n e e d t o e n g a g e c o u n s e l ”.
10

T h a t m e e t i n g t h e n o c c u r re d o n t h e 1 5 t h a n d t h a t i s w h e r e
t h e a d v i ce w a s g i v e n t o s a y, “ We w o u l d n e e d t o e n g a g e
c o u n s e l i n t h i s m a t t e r ”.
B u t o f t h e c o u n s e l t h a t t h e y w e r e c o n t a ct i n g , t h e re w a s
not one readily available to come onboard as between... from
b e t w e e n t h e 1 5 t h a n d t h e t i m e w h e n t h e y c o n t a ct e d u s w h i c h
i s u n d e r st a n d a b l e u n d e r t h e ci r cu m st a n ce s w h e r e e v e r y b o d y
i s u n d e r l o c k d o w n vi rt u a l l y a n d t h e n p e o p l e a r e w o r ki n g f r o m
home and so on.
B u t t h e l o n g a n d s h o rt o f i t i s t h a t t h e y w e re n o t a b l e t o

20

o b t a i n a l t e r n a t i v e c o u n s e l u n t i l t h e t i m e w h e n t h e y c o n t a ct e d
us and we said we could be available to consult there but we
n e e d t o f i n d o u t . I t i s a ct u a l l y t h e h e a ri n g d a t e .
T h e n t h e o t h e r p o i n t I m a d e m e n t i o n t h e re .

I... it is so

t h a t t h e o t h e r i n c i d e n t a r e o f A p ri l o r M a r c h , b u t t h e r e i s t h e
a d d e d e l e m e n t o f t h e . . . A d v o ca t e B o t e s h a vi n g c o m e o n t h e
Page 31 of 74

24 JULY 2020 – DAY 237
1st.
O b vi o u s l y, t h a t w o u l d h a v e b e e n a d d r e s s e d i n b e t w e e n
h a d t h e c o u n se l n o t . . . I m e a n , h a d t h e l e g a l r e p r e s e n t a t i ve s
not withdrawn.

O n e b e l i e v e s t h e y w o u l d h a v e a d d re s s e d i t

in between.
S o t h e q u e st i o n i s , t o w h a t e xt e n t s h e c o u l d b e t o b l a m e
u n d e r t h o se c i r c u m st a n c e s ? I a p p r e ci a t e t h e f a ct t h a t s h e i s
a j u d g e i n a h i g h c o u rt a n d o n e c a n n o t l o o k a t h e r l i k e a n y
o t h e r o r d i n a ry.
10

B u t M r C h a i r, a t t h e s a m e t i m e , o n e w o u l d , w i t h r e s p e ct ,
re m e m b e r t h e p ri n ci p l e o r t h e s a m e b y p l a t e a u t h a t i t i s b e st
f o r o n e t o h a ve l e g a l re p r e s e n t a t i o n t h a n t h e m s e l v e s t h e m
p r e s e n t i n g t h e i r o w n c a se .
C H A I R P E R S O N : N o . . . [ i n t e r v e n e s]
A D V S H A K O A N E : S o i n t h e s e ci r c u m st a n c e s. . . [ i n t e r v e n e s]
CHAIRPERSON: H’m?
A D V S H A K O A N E : . . . I w o u l d s a y i t i s m y su b m i s si o n t h a t o n
t h e f a c e o f w h a t i s t h e r e , s o m e st e p s a l m o st p r o a ct i v e l y
appeared to have been taken except for the limitations of the

20

a v a i l a b i l i t y o f t h o s e t h a t s h e w e n t t o f o r a s si st a n ce .
C H A I R P E R S O N : We l l , w h a t c e rt a i n l y a p p e a r s t o b e t h e c a s e
i s t h a t t o t h e e xt e n t t h a t s h e m i g h t n o t h a v e h a d e n o u g h t i m e
w i t h h e r l a w y e r s, w i t h h e r c o u n s e l t o p r e p a r e f o r t o d a y i s
b e ca u s e s h e d e ci d e d t o i n st r u ct t h e m l a t e .
ADV SHAKOANE: H’m.
Page 32 of 74

24 JULY 2020 – DAY 237
C H A I R P E R S O N : A n d t h a t w a s h e r d e ci si o n .
ADV SHAKOANE:

We l l , w e co u l d s a y l a t e i f w e . . . u n d e r

t h e se ci r c u m st a n c e s w e h a d t h e p r e ci s e d a t e w h e n t h e y
w i t h d r e w, t h e o t h e r a t t o r n e y s a n d t h e c o u n s e l i n d i c a t e d t h e
c o n f l i ct .
CHAIRPERSON:

Ye s, I m e a n s h e k n e w f o r q u i t e s o m e t i m e

s h e w o u l d b e re q u i r e d t o a p p e a r h e re .

She could have

e n su r e d t h a t h e r l a w y e r s w e r e f u l l y b r i e f e d a n d r e a d y a n d
waiting for the date.
10

I f sh e d i d n o t d o t h a t b e f o r e k n o w i n g

the date, as soon as she knew the date, she could do that.
We l l , s h e m i g h t h a v e d e ci d e d t h a t s h e n o l o n g e r n e e d e d
t o b e r e p re s e n t e d b y h e r o w n l a w y e r s, b e c a u se I t h i n k t h a t i s
t h e s u g g e st i o n i n h e r c o r re s p o n d e n c e p ri o r t o t h e 9 t h o f Ju l y
a n d s h e w a s h a p p y t o c o n s u l t w i t h t h e e vi d e n c e l e a d e r s o f
t h e C o m m i s si o n .
A c o n s u l t a t i o n w a s a r ra n g e d a n d i t t o o k p l a c e o n t h e
9 t h o f J u l y b u t s h e d i d n o t s e e m . . . sh e d o e s n o t s e e m t o
t h e r e a f t e r a ct w i t h u r g e n c y w h e n t h e n e xt t i m e s h e i n st r u ct s
attorneys is on the 15th when the matter is quite urgent. The

20

d a t e i s n o t f a r.
A n d t h e n o f c o u r s e , a b o u t si x d a y s t h e r e a f t e r l a p s e d
b e f o r e t h e C o m m i s si o n i s i n f o r m e d o f a n y d i ff i c u l t i e s t h a t
m a y b e t h e r e t o h e r a p p e a ri n g a n d a s t h i n g s st a n d t h e r e
does not appear to be any proper explanation from her for
why she did not act with diligence in regard to – between
Page 33 of 74

24 JULY 2020 – DAY 237
the 6th or at least the 9th up to 21st when the first letter
was sent.
ADV SHAKOANE SC:
CHAIRPERSON:

Ye s , b u t … [ i n t e r v e n e s ]

It may be that there is much not much

you can say other than what you have already said.
ADV SHAKOANE SC:

Save to point out the following that

on the contents of the letter she had already indicated as
the 27th, 28th, when she was contacted to say that Adv
Botes will be testifying, that then the notice she has been
10

given would be short notice. But also, the fact that she did
not indicate to the team as in paragraph 8 that she would
have wanted to be given a Rule 3(3) notice in respect of
Adv Botes evidence and if she had had that notice then
one

understands

that

probably

that

part

of Adv

Botes

evidence would have been addressed at the time when he
testified and …[intervenes]
CHAIRPERSON:

Well, she would have been given Adv

Botes’ affidavit.
ADV SHAKOANE SC:
20

CHAIRPERSON:

Ye s .

Ahead of the date of the hearing and

that notice would have told her that she could attend the
hearing when Mr Botes gives evidence but if she was not
available,
a l r e a d y.

one,

the

affidavit,

she

would

be

having

it

Tw o , i f s h e w a n t e d a t r a n s c r i p t o f M r B o t e s ’

evidence she knew she could ask for it, she is a judge, she
Page 34 of 74

24 JULY 2020 – DAY 237
knows these things, evidence gets transcribed, she could
have got that. It does not seem to prejudice her in any way
as long as in the end she can see the evidence that was
given and she can given and she can decide if she wants
to cross-examine him in which case she must make an
application for leave to do that but that has time limits
within which it must be done and – ja, so – and the rules
make

provision

that

if

you

were

not

given

a

notice

timeously for – about a witness who is going to implicate
10

you, you can make an application to the Chairperson for an
a p p r o p r i a t e o r d e r.

So most people, since the Commission

started, do not seem – do not take it as a problem because
they know they can still get the transcript, they can still
apply for leave to cross-examine the witness and if they
are granted leave, then they will challenge and crossexamine the witness. Okay?
I t h i n k I h a v e h e a r d w h a t y o u h a v e h a d t o s a y, I
need

to

hear

Mr

Soni.

Is

there

some

last

minute

instruction that you have just got?
20

ADV SHAKOANE SC:
something to…

Ye s , I a m t r y i n g t o c o m m u n i c a t e

I am made to understand from this, Mr

C h a i r, t h a t t h e r e w a s a – I a m s u r e i t a r o s e f r o m w h a t t h e
consultations she has had with the evidence team.

There

was a supplementary affidavit of Botes SC which was
promised to be supplied to her but has still not been
Page 35 of 74

24 JULY 2020 – DAY 237
provided to her which, in my understanding, would probably
be forming part of the entire evidence that was given Botes
SC to which she must comment.
CHAIRPERSON:

Ja, well I will hear what Mr Soni has to

say about that but I am sure it is probably something very
minor and she has known about what Mr Botes’ version is
about

her

for

quite

some

time

because

she

lodged

a

complaint with the Bar Council against him, there was an
exchange of affidavits, as I understand the position, but let
10

me hear what Mr Soni has to say.

I will decide the

application in due course but while Mr Soni is addressing
me, if possible it would be good if somebody from your
team would find out from the judge whether if we postpone
today,

subject

availability,
evidence

to

whether

tomorrow,

the

Commission’s

she

would

on

Saturday.

be

legal

available
We

have

team’s
to

sat

give
on

Saturday before, where we sit on Saturday, if necessary.
can indicate that next week will be problematic.
there
20

was

a

request

for

a

month.

I

can

a
I

I saw that
tell

you

immediately, I am not going to – if I grant a postponement,
it is not going to be for a month.

That I can tell you.

I

have spoken to her Judge President this morning and I
asked him whether, should I be persuaded to grant a
postponement, if I grant a postponement to a date that is
close but which happens to be a day when she is supposed
Page 36 of 74

24 JULY 2020 – DAY 237
to be in court, would he be able to release her and the
Judge President said he would be able to make a plan at
least as long as he gets something like two days notice he
would be able to make a plan if I postpone the hearing
today to another date that happens to be a court date.

So

alright, so let me hear what Mr Soni has to say, but maybe
somebody in your team could in the meantime try and get
that information from her.
ADV SHAKOANE SC:
10

CHAIRPERSON:
sanitise

before

Thank you.

Mr Soni, I think they might need to
you

take

the

stand.

And

then

the

Commission staff can check in the meantime from the
municipality whether if we were to sit tomorrow there would
be any problem with the venue or not.

Maybe let me start

with that, Mr Soni. Should I grant the postponement? How
is your availability tomorrow.
ADV SHAKOANE SC:

We are available tomorrow and

Sunday.
CHAIRPERSON:
20

And Sunday?

ADV SHAKOANE SC:
CHAIRPERSON:

Yes, Chair.

Okay, thank you.

ADV SONI SC:

Chairperson, I do not wish to traverse

factual

and

disputes,

there

are

factual

disputes.

My

learned friend handed you today a letter explaining or
purporting

to

explain

the

sequence

Page 37 of 74

of

events.

Now,

24 JULY 2020 – DAY 237
Chairperson, there are two letters that I would beg leave to
hand

up

to

you

and

they

were

both

sent

to

Makhubele relating to how things were to progress.

Judge
The

first is the 13 July which is after the consultation with her
and then, Chairperson, on the 22 July to the attorneys
when

they

placed

themselves

on

record.

And

…[intervenes]
CHAIRPERSON:

Before you proceed let me say that it

may be necessary for the record for you to go through the
10

history of what has happened since – particularly in regard
to when were Rule 3(3) notices sent to Judge Makhubele
relating to Ms Ngoye and Mr Dingiswayo and the other
witnesses so that we get all of that on record.
ADV SONI SC:
CHAIRPERSON:

As you please Chair.
If you need to read certain things onto

the record you may do so.
ADV SONI SC:

Yes.

Chairperson, we normally at the

Commission have a tracking record of all the 3(3) notices
and that has never been in dispute.
20

I will hand this up but

I will tell what it says, Chairperson.

In regard to Ms

Ngoye’s affidavit, this was served on Judge Makhubele on
the 21 February 2020.

Mr Dingiswayo’s affidavit was also

served on the 21 February.
Then there are three other affidavits, Chairperson,
the affidavit of Mr Zackie Achmat was served on the 20
Page 38 of 74

24 JULY 2020 – DAY 237
February 2020. Mr Mogashoa’s affidavit was served on the
26 May 2020 and Mr Botes’ affidavit was served on the 26
May as well.
CHAIRPERSON:

So Ms Ngoye’s affidavit was served on

Judge Makhubele on 21 February 2020.

Mr Dingiswayo’s

affidavit was served on her on the same date.
ADV SONI SC:

Yes, sir.

CHAIRPERSON:
20 February.
10

Mr Achmat’s affidavit was served on the

Mr Mogashoa’s affidavit was served on the

26 May. Mr Botes’ affidavit was served on the 26 May.
ADV SONI SC:

That is so.

CHAIRPERSON:

So in regard to Ms Ngoye’s affidavit and

Mr Dingiswayo’s affidavit, Judge Makhubele has had those
as well as Mr Achmat’s affidavit from 21 February.

She

has had those affidavits for about six months.
ADV SONI SC:

Six months, yes, Chair.

CHAIRPERSON:

During which she has not filed any

affidavit responding to them.
ADV SONI SC:
20

CHAIRPERSON:

No.
With regard to Mr Mogashoa’s affidavit,

that was served on her on the 26 May 2020 and Mr Botes’
affidavit was served on her on the same date and with
regard to those two affidavits, she has had about two
months.
ADV SONI SC:

That is…
Page 39 of 74

24 JULY 2020 – DAY 237
CHAIRPERSON:

And apart from the affidavit that she

filed sometime – was it early July?
ADV SONI SC:

1 July.

CHAIRPERSON:
with Mr Botes.

1 July, which dealt, to a large extent,
Apart from that, there is no other affidavit

that she has filed.

Ja.

Yes and then talk about the

supplementary affidavit that Mr Shakoane talked about.
ADV SONI SC:

Chairperson, at the consultation of the 9

July, Judge Makhubele said that she was ready only to
10

discuss Mr Botes’ affidavit and I recorded in the letter of
the 13 July what happened at that consultation.

She has

never responded to say what I recorded was incorrect but
to answer the question, Chairperson, I then indicated to
her that I was more than happy to do a supplementary
affidavit because she said she had not covered certain
aspects in particular messages exchanged between her
and Mr Botes.

I then sent that affidavit to her on the 13th

and I heard my learned friend say that that had not been
done.
20

It in fact has been done and I will submit to you,

Chairperson, a letter – I mean, an SMS from Ms Ratanga to
Judge Makhubele attaching the affidavit in question.
On that issue, Chairperson, and I do not wish –
because I place on record now that I will raise some of
these matters with Judge Makhubele whenever she comes
to testify, Chairperson, and the reason I do that is, after I
Page 40 of 74

24 JULY 2020 – DAY 237
submitted the affidavit to her I phoned her.

She did not

answer the phone, her daughter answered the phone and I
said to her daughter please ask her to phone me.

That

was on the 13 July. I have not heard a response since.
I took the trouble over that weekend to go through
all the correspondence and assist in that process and now
to be accused of not doing what I had indicated is, we
submit, quite cheeky, Chairperson, to say the least.
those are in fact the facts.
10

But

But there is something that

my learned friend has tried to explain …[intervenes]
CHAIRPERSON:

Well, you might wish to highlight certain

things in the letter that you sent or that was sent.
ADV SONI SC:

Yes, please.

CHAIRPERSON:

So that there is a clear picture of where

the legal team of the Commission stands with regard to
some of these – I leave it to you what to place on record.
ADV SONI SC:

20

Yes.

CHAIRPERSON:

Whether to read any part into the record.

ADV SONI SC:

Chairperson, in the letter of the 13 July

the first three paragraphs indicate the past history, as it
were.

From

the

outset,

after

the

time

that

Judge

Makhubele received the affidavits of Ms Ngoye and Mr
Dingiswayo

and

Mr

Achmat,

she

adopted

legalistic

approach about she had not been advised about this, that
and

the

other

and

there

was

Page 41 of 74

an

exchange

of

24 JULY 2020 – DAY 237
correspondence but for present purposes one need not
deal with that because then she wrote to Commission and
say I have changed my mind, I am not having independent
lawyers, I would like to consult and it is as a result of that,
that

the

consultation

of

the

9

July

was

arranged,

Chairperson, and it was arranged for the 9 July because
we were hearing the evidence of the witnesses in the week
before and it was from the 29 June to the 2 July we heard
the evidence of Ms Ngoye and Mr Dingiswayo and Mr Botes
10

in relation to Judge Makhubele.

So that is why one could

not consult.
What I want to say, Chairperson, is she at no stage
indicated that she was unhappy with the hearing, I had
many telephonic communications with her and in fairness
to Judge Makhubele, the conversations were always cordial
and very respectful on both sides.

And it is in that context

that the consultation on the 9 July came about and Judge
Makhubele, to the best of my knowledge must have been
aware because the purpose was so that she could have an
20

affidavit which reflects her version in answer to the five
affidavits.
To our surprise, at the consultation – and it was a
five

hour

consultation,

Chairperson,

she

said

she

was

prepared only to deal with the affidavit of Mr Botes.

And

the importance of that, Chairperson, is twofold.
Page 42 of 74

One is,

24 JULY 2020 – DAY 237
she had had the previous affidavits, as you rightly point
out,

by

that

time,

six

months

previous

–

five

months

previous.
With Mr Mogashoa she made it clear to me because
– and this is in most of the affidavits, a lot of it is
correspondence that is attached, reports that were there.
So it is not as if there was a dispute of fact, it is simply
what does this mean, why did you respond this way?

It is

not the type of consultation that you need hours and hours
10

for.

Did you receive this, did you say this?

And that is

why we thought, just to spend five hours only on Mr Botes
and then we do not even have the supplementary affidavit
back is really …[intervenes]
CHAIRPERSON:

What it means is that you had made

yourself available for, I mean, five hours, like the whole
working day to consult with her on all matters on which she
was going to have to testify.
ADV SONI SC:

That is so.

CHAIRPERSON:
20

But she was the one who said she was

only prepared to consult on Mr Botes’ evidence.
ADV SONI SC:

Yes, so the emphasis was she had come

prepared only to consult.
CHAIRPERSON:

Yes, she had come prepared only in

regard to Mr Botes.
ADV SONI SC:

Yes.
Page 43 of 74

24 JULY 2020 – DAY 237
CHAIRPERSON:

She had not come prepared to deal with

all the witnesses.
ADV SONI SC:

Because during that consultation I put to

her certain things, for example, that Ms Ngoye had said in
her affidavit or Mr Dingiswayo and it is at that stage she
says no, I had not come prepared for…
CHAIRPERSON:

And prior to when the arrangement was

made for that appointment was there any discussion that
the consultation would be – that she needed to prepare
10

herself only in regard to Mr Botes?
ADV SONI SC:

Not at all, Chair.

CHAIRPERSON:
ADV SONI SC:

Yes.
We would never have done that because

the – we had already by that stage on the 1 July had her
affidavit on Botes.

So we would have – in fact I had not

even thought that Mr Botes’ affidavit would be an issue.
CHAIRPERSON:
ADV SONI SC:

Yes.
But she then raised that there were

certain messages that she would like to be attached.
20

CHAIRPERSON:

Yes, yes.

So she had had Ms Ngoye’s

affidavit and Mr Dingiswayo’s affidavit at that time for
maybe about five months.
ADV SONI SC:
CHAIRPERSON:

That is so.
She asked for a consultation with the

legal team of the Commission, she was granted one.
Page 44 of 74

24 JULY 2020 – DAY 237
ADV SONI SC:

Yes.

CHAIRPERSON:

Which

was an

opportunity for –

to

canvass all the evidence and for her to deal with all the
affidavits of all these witnesses but she said she had
prepared herself only for Mr Botes.
ADV SONI SC:

That is so.

CHAIRPERSON:

And you were there, you were available

to deal with all of them.
ADV SONI SC:
10

With all of them and, in fact, I had

prepared for the consultation on that basis.
CHAIRPERSON:
ADV SONI SC:

Yes.
And saying to her well, look, you perhaps

need to answer this, you need to answer this, do you agree
that this was said, is at that stage that she indicated that
she would rather not …[intervenes]
CHAIRPERSON:

Did she give any reason why she had

not prepared to deal with all of them?
ADV SONI SC:

She said she felt that she only needed to

deal with Mr Botes.
20

CHAIRPERSON:
ADV SONI SC:

Yes.
Now, Mr Chairperson, in view of the fact

that I will be cross-examining here, it would not be unfair
for me to impute things to her.
CHAIRPERSON:
ADV SONI SC:

Okay, ja.
But what I do want to say is that once she
Page 45 of 74

24 JULY 2020 – DAY 237
indicated

a

reluctance,

I

did

not

want

to

create

the

impression that she is forced to do so.
CHAIRPERSON:

Yes.

ADV SONI SC:

And she, being a judge, I indicated it to

her well, will you prepare the affidavit?

At that stage,

Chairperson, I need to indicate she did not say to us that
she would need legal assistance, she only indicated that to
Ms Ratanga in the lift when they were going down.
CHAIRPERSON:
10

Ja.

ADV SONI SC:

And on the following day I phoned her and

I

I

said

look,

representation.

understand

you

may

want

legal

This is the 10th, that is exactly two weeks

ago, Chairperson, and she said yes, I am thinking about it.
And I said well, please ensure that we have the affidavit in
time. And this was her response, Chairperson, I am driving
with people, I am not in a position to talk and I say well, if
you want, we can talk over the weekend and she says I am
going to busy all weekend.
CHAIRPERSON:
20

ADV SONI SC:

Okay, okay. No, that is fine.
Chairperson, can I then go to this – I have

been informed, Chairperson, that the venue is available
over the weekend.
CHAIRPERSON:
ADV SONI SC:

Okay, thank you.
All of these facts are recorded in this

letter and if one has regard to paragraph 6, Chairperson,
Page 46 of 74

24 JULY 2020 – DAY 237
we say exactly what happened at the consultation and then
that she had told Ms Ratanga that she – at paragraph 7
that she wanted her own lawyer and then on the 10th I
phoned her.

So all of that is recorded and for no other

reason but just to make sure that a dispute like this does
not arise, we ensured that it was sent to her.

We have not

had a response to this saying that there was anything
amiss with what had been recorded there.
Then, Mr Chairperson, we received a letter from
10

Bokwa Attorneys on the 21 July – when I say we, the
Commission, and what they say is:
“We have taken notice because we, on the 21st sent
a reminder notice of today’s hearing.”
And the response was from the attorneys, so:
“We confirm we have been reinstructed by Judge
Makhubele to act on her behalf in the proceedings
before the State Capture Commission.

We will be

furnishing yourself with a letter stating our client’s
position before the end of business tomorrow.”
20

So this notion that we were told there was going to – on
the 21st that there was going to be an application for a
postponement simply does not exist.

Not on what we have

received.
CHAIRPERSON:

So as at the 21 July, from what one can

– you can see in that letter, the attorneys were saying they
Page 47 of 74

24 JULY 2020 – DAY 237
were still going to write to the Commission.
ADV SONI SC:
CHAIRPERSON:

Yes.
To indicate what their client’s position

was.
ADV SONI SC:
CHAIRPERSON:
ADV SONI SC:

Yes.
Okay.
Then, Mr Chairperson, in anticipation that

they needed to know what our position was, I have given
you a letter, Chairperson, of the 26 July which we sent to
10

Bokwa Attorneys and we copied …[intervenes]
CHAIRPERSON:
ADV SONI SC:
CHAIRPERSON:
ADV SONI SC:

Did you say 26?
22 July, sorry.
2 2 n d , o h . Ye s ?
And we copied Judge Makhubele on that

letter and we copied Judge President Mlambo and the
reason

Chairperson

is

because

Judge

Makhubele

has

insisted right from the outset that in any matter relating to
her appearance at the Commission ...[intervenes]

20

CHAIRPERSON:

The Judge President be informed.

ADV SONI SC:

...Judge President Mlambo needs to be

informed.
CHAIRPERSON:

Ye s .

ADV SONI SC:

And on – in that letter Chairperson we

indicated again our position setting out more or less what
had been set out in the letter of the 13th of July and
Page 48 of 74

24 JULY 2020 – DAY 237
...[intervenes]
CHAIRPERSON:

I think you must read into the record that

l e t t e r, j a .
ADV SONI SC:

As you please.

What on behalf of the

L e g a l Te a m t h e f o l l o w i n g w a s p l a c e d o n r e c o r d , t h i s i s i n
paragraph 2 Chairperson.
“On the 6th of July a notice of set-down was served
on Judge Makhubele confirming that she will be
t e s t i f y i n g b e f o r e t h e C o m m i s s i o n o n t h e 2 4 t h o f J u l y.
10

Judge Makhubele indicated that the date suited her
as it fell during Court recess.”
And Chairperson I may make that point that that is exactly
what she told us when the date was set.
CHAIRPERSON:
ADV SONI SC:
CHAIRPERSON:
ADV SONI SC:

Ye s , t h a t i s 2 . 2 ?
When the date was set?
Ye s , t h a t i s 2 . 2 ?
2.2 Chairperson. Then at 2.3 we recorded

Judge Makhubele’s request that consultation was held with
her on the 9th of July with the view to preparing an affidavit
20

in which Judge Makhubele would respond to the allegations
made in the affidavit of Mr Dingiswayo, Ms Ngoye, Mr
Botes and Mr Mogashoa.
It is recorded that the first three persons have
already testified. Then 2.4:
“That

affidavit

could

not

Page 49 of 74

be

prepared

as

Ms

24 JULY 2020 – DAY 237
Makhubele’s said she had prepared to deal only
with the allegations made by Mr Botes.

Judge

Makhubele later informed the legal team that she
would

be

engaging

an

attorney

to

prepare

an

affidavit in response to the allegations that had
been made in the affidavits reports witnesses.

She

was informed of the need to do so, the need for this
to be submitted long before the 24th so that it, the
affidavit,
10

t i m e o u s l y.

could

be

served

on

the

deponents

In a subsequent letter Judge Makhubele

was informed that the Commission’s position was as
follows; Judge Makhubele is required to appear at
the Commission on the 24th of July ...”
And Chairperson I keep emphasizing, she is required to
attend, because she has received a notice and it does not
lie in anybody’s hands to defy that sort of notice unless a
prior application is made, and none has been done.
As indicated in that notice she will be required to
deal with the allegations by all the deponents and Judge
20

Makhubele is expected to file timeously the affidavit or
sworn statement dealing with the allegations against her
and Chairperson I want to emphasize this, in paragraph 2.8
what was also said on behalf of the legal team is what is
set out above is still the Commission’s position with this
r i d e r, w h e t h e r o r n o t a n a f f i d a v i t i s s u b m i t t e d t i m e o u s l y o r
Page 50 of 74

24 JULY 2020 – DAY 237
at

all

at

her

appearance

on

the

24th

of

July

Judge

Makhubele will be questioned on the allegations made
a g a i n s t h e r.
We were making it quite clear Chairperson that it
was

the

answers

that

she

is

going

to

give

to

the

Commission and she could not avoid her appearance here
by not submitting an affidavit.
Then Mr Chairperson from my perspective the next
issue that arose is my learned friend for Judge Makhubele,
10

phoned me yesterday at quarter past one and asked me if I
– and I say that because he has said something about what
transpired.

I said to him Chairperson that it was not in my

hands but I want to formally place on record the two letters
or what had been recorded in the two letters and that I
would strongly oppose any application or a postponement
to that, but of course that application could be brought
because

Chairperson

it

is

not

my

decision,

it

is

with

respect your decision Chairperson, but I made my position
q u i t e c l e a r.
20

A s I u n d e r s t a n d i t f r o m t h i s l e t t e r, a n d i t w a s n e v e r
communicated to me, my learned friend then spoke to the
legal – the leader of the Commission’s legal team’s Mr
Paul Pretorius, to try and arrange for postponement.

I do

not know what transpired in that, but I only heard about it
i n t h a t l e t t e r.
Page 51 of 74

24 JULY 2020 – DAY 237
W e t h e n g o t a l e t t e r, t h i s l e t t e r C h a i r p e r s o n t h a t
has been handed to you by my learned friend, to say that
an application for a postponement would be made.
So

that’s

the

first

I

became

aware

that

Judge

Makhubele – well that she would – that an application for a
postponement would be made.
At midnight I called Ms Ratanga and I said to her
she must indicate to the – Ms Makhubele’s legal members,
and the reason I didn’t respond Chairperson is the letter
10

was not directed at me, you will see it is directed at Ms
Ratanga for her attention to say that this application would
be made and keeping that protocol I said to her Ms –
Judge Makhubele must be told that there would be this
opposition and that she is required to be here.
So that Chairperson are the facts, and I place them
on record because in a sense what is recorded in the letter
that was sent does not accord with what has been we
submit the agreed facts as up to yesterday and which are
borne out by all the exchanges between us, so to the

20

extent that what is contained in the letter is in – the letter
by Judge Makhubele’s attorneys is at variance with what
we have put up Chairperson we would ask that what we
have set out be regarded as the correct set of facts on
which the application should be adjudicated.
Chairperson for me this really is the issue, the
Page 52 of 74

24 JULY 2020 – DAY 237
d i s p u t e , a n d a l l t h e d i s p u t e s r e l a t i n g t o t h i s m a t t e r, a r e
contained in documents, it does not require days and days
of consultations to work out what the disputes are.

I give

one example Chairperson, there is a report that is given by
Mr Mogashoa ...[intervenes]
CHAIRPERSON:

Well Mr S oni I don’t even think you need

to give examples.

Judge Makhubele has had – the main

affidavits are those of Ms Ngoye and Mr Dingiswayo.

She

has had them for six months.
10

ADV SONI SC:

A b s o l u t e l y.

CHAIRPERSON:

She

has not

prepared

any affidavit

during that six m onths to respond to those affidavits.

As

far as Mr Achmad is concerned, she has also had six
months to prepare an affidavit to respond to.

As far as

Mogashoa and Botes, but take Mogashoa she has had
about two months, and she has not done anything.
ADV SONI SC:

Indeed, no.

CHAIRPERSON:

In terms of the rules everybody is given

two weeks, or ten days, she has had more than enough,
20

she

has

done

allegations

by

o p p o r t u n i t y.
these

six

absolutely
way

of

nothing

affidavit.

to
She

deal

with

those

has

had

ample

No explanation seems to be given why over

months

she

could

not

have

prepared

those

affidavits, I got counsel to prepare those affidavits for her
to respond to this, and with regard to Mr Botes she has
Page 53 of 74

24 JULY 2020 – DAY 237
known Mr Botes version about the – about what he has to
say about here I think for quite a long time because of the
complaint that she lodged with the Bar Council, so there is
no doubt that she has had more than ample time.
ADV SONI SC:
CHAIRPERSON:

That is so.
To p r e p a r e a f f i d a v i t s .

Ye s , s o w h a t – i s

there anything else you want to say?
ADV SONI SC:
The
10

approach

C h a i r p e r s o n t h e r e i s o n e f u r t h e r m a t t e r.
adopted

by

Judge

Makhubele,

notwithstanding the fact that we tried to consult – well we
consulted with her and urged her to file the affidavit has
made preparation for her appearance are a major task and
I’m not complaining about that but what the purpose of this
i s , t o s a y, I a c c e p t t h e f o l l o w i n g s e t o f f a c t s , y o u n e e d o n l y
question me on the following but the preparation now has
been to check with every fact because there isn’t that
affidavit and it just, in a sense, Chairperson, makes me the
leading of the evidence a very untidy affair as it were
because you need to go through the allegation first and

20

then have response to it and Judge Makhubele must know
that, that is not how disputes in a Commission like this are
resolved.
CHAIRPERSON:

Okay is there anything else you want to

say?
ADV SONI SC:

Chairperson I know I should formerly say
Page 54 of 74

24 JULY 2020 – DAY 237
what our position is with regard to the respondent, the
difficulty is that there is this non-appearance and I’d rather
not comment on it but I’d rather challenge whatever Judge
Makhubele says when she comes to give evidence on that
but I would just say this, Chairperson, prime facie it is
highly disrespectful of the Commission and even more
highly disrespectful of you, Chairperson.

Given the fact

that you’re the Chairperson of the Commission also given
the fact, Chairperson, with respect you are the Deputy
10

Chief Justice of the country and when a notice is served in
y o u r n a m e , v i r t u a l l y, t o a p p e a r a n d t o a d o p t t h i s c a v a l i e r
attitude is something that must be found.
CHAIRPERSON:
accept,

Mr

Ye s , t h a n k y o u , M r S h a k o a n e ?

Shakoane,

that

no

explanation

Do you

has

been

presented to me as to why Judge Makhubele has not, over
this long period, since February prepared affidavits that
respond to the allegations made against her by Ms Ngoye,
Mr Dingiswayo and Mr Achmat and also why over the past
two
20

months

or

so

she

hasn’t

prepared

an

affidavit

responding to Mr Mogashoa’s affidavit, do you accept that,
there is nothing that – that has been placed before me that
gives me an explanation for that?
ADV

SHAKOANE

SC:

Sorry

C h a i r,

you

say

no

explanation, I…[intervenes].
CHAIRPERSON:

Yo u

may

draw

Page 55 of 74

my

attention

to

an

24 JULY 2020 – DAY 237
explanation if you say there is?
ADV SHAKOANE SC:
by

her

is

before

I’m not sure if the letter of 23 June
you

Mr

C h a i r,

it

seems

to

be

correspondence she explained – or the…[intervenes].
CHAIRPERSON:

Ye s , y o u h a v e t o r a i s e y o u r v o i c e a g a i n

Mr Shakoane, I think the mask is preventing you from being
heard.
ADV SHAKOANE SC:

I was saying the letter of 23 June

which she wrote to the evidence team is …[intervenes].
10

CHAIRPERSON:

I t ’ s n o t b e f o r e m e r i g h t n o w i s n ’ t i t ? Yo u

didn’t place that before me did you?
ADV SHAKOANE SC:
CHAIRPERSON:

Well it’s in the…[intervenes].

Are you talking about the letter from the

Commission’s legal team to her?
ADV SHAKOANE SC:

N o , t h e l e t t e r f r o m h e r, 2 3 J u n e

2020.
CHAIRPERSON:

W e l l y o u d i d n ’ t h a n d u p s u c h a l e t t e r.

ADV SHAKOANE SC:

I’m not sure if there’s an ext ra copy

that I can hand up.
20

CHAIRPERSON:

W h a t d o e s i t s a y, d o e s i t p r o v i d e a n

explanation?
ADV SHAKOANE SC:
says

there

that

she

It says, amongst other things, she
is

going

to

be

dealing

evidence of …[intervenes].
CHAIRPERSON:

I can’t hear you Mr Shakoane.
Page 56 of 74

with

the

24 JULY 2020 – DAY 237
ADV SHAKOANE SC:

Sorry the evidence – may I perhaps

read it, read the letter?
CHAIRPERSON:

But does it – are you submitting that it

does provide an explanation or not?

I don’t want to take

time to read it if it doesn’t have.
ADV SHAKOANE SC:

W h a t I c a n s u b m i t , M r C h a i r, i s

that, in there she is informing the evidence team what she
would be able to deal with at the meeting and then she
says, also, that she is ready to provide a sworn statement
10

or

affidavit

in

respect

of

the

previous

are

you

reading

Rule

33

Notices…[intervenes].
CHAIRPERSON:

Where

from,

what

paragraph?
ADV SHAKOANE SC:

The first part starts from paragraph

One to four but what I was reading now is in paragraph six.
CHAIRPERSON:

Ye s .

ADV SHAKOANE SC:

From one to four that’s where she

mentions that – for example in paragraph …[intervenes].
CHAIRPERSON:
20

Well in paragraph six she says, and I

read,
“I

therefore

provide

advise,

f u r t h e r,

that

I’m

ready

to

a sworn statem ent/affidavit in respect of

the various Rule 33 Notices issued in relation to the
evidence of a) Mr Mfanimpela Moses Dingiswayo, b)
Ms Onica Martha Ngoye and c) Mr Abdulrazak Zakir
Page 57 of 74

24 JULY 2020 – DAY 237
Achmat and then seven kindly advise the legal team
and forensic investigators to get in touch with me
as soon as possible”.
So she was saying – this was 23 June, she was
saying she was ready to provide a sworn statement or
affidavit

in

relation

to

the

evidence

of

these

three

witnesses whose affidavits she received in February last
year but according to Mr Soni and the correspondence that
s h e a d d r e s s e d t o – t h a t h e a d d r e s s e d t o h e r, s u b s e q u e n t
10

to the 9th of July – on the 9th of July when she came to
consult with him, with the legal team of the Commission,
she said she was – she had only prepared to deal with the
affidavit of Mr Botes, contrary to what she had said in this
l e t t e r,

that

she

was

ready

to

provide

a

sworn

statem ent/affidavit in regard to all of them and there’s
nothing that has been placed before me to say why it is
that if she was ready about a month ago, 23 June 2020 to
provide an affidavit or sworn statement in regard to these
w i t n e s s e s , w h y a s w e s p e a k t o d a y, t h e r e i s n o a f f i d a v i t t h a t
20

she has provided and again, this is not a lay person who
might not know how to prepare an affidavit. Even without a
l a w y e r, s h e c a n p r e p a r e t h e a f f i d a v i t s h e r s e l f .
ADV SHAKOANE SC:

Well that is so M’Lord – sorry as

mentioned earlier the preferable position would be that one
is represented…[intervenes].
Page 58 of 74

24 JULY 2020 – DAY 237
CHAIRPERSON:
c o r r e c t l y,

to

No, no that we accept and you put it

s a y,

preferable,

maybe

it’s

more

than

preferable but there’s a limit – there’s a limit, you are a
Judge,

you

are

experienced,

you

know

these

m a t t e r,

there’s nothing complex about this, these matters don’t
involve any complex legal issues and you know you want to
provide an affidavit, you say you are ready to provide and
affidavit to answers these allegations of three witnesses
and you come to a consultation that has been arranged at
10

your request, you say you are only prepared to deal with
one and up to know we don’t know why she was not
prepared to deal with the others and you come to apply for
a p o s t p o n e m e n t a p p l i c a t i o n , y o u a r e n o t e v e n a b l e t o s a y,
in the meantime I have completed the affidavits, here they
are.
ADV

SHAKOANE

SC:

Ye s ,

but

perhaps

Mr

Chair…[intervenes].
CHAIRPERSON:

That can’t be acceptable from a Judge.

ADV SHAKOANE SC:
20

W h e r e a s , M r C h a i r, b e f o r e t h a t k i n d

of conclusion could be reached or one firms that criticism
a g a i n s t h e r, t h e b e s t a p p r o a c h , p e r h a p s , i n m y – p e r h a p s
in my respectful suggestion to the Chair is, maybe what
you mentioned earlier in the beginning of – or in the course
of my address could be the approach that is adopted i.e.
where you said that you offer her an opportunity to explain
Page 59 of 74

24 JULY 2020 – DAY 237
those gaps even if it’s by way of an affidavit under oath.

I

submit that would be the – most probably the fair way of
dealing

with

it

so

that

she

can

–

because

what

…[intervenes].
CHAIRPERSON:

I mean you’re talking about an affidavit

to explain what?
ADV SHAKOANE SC:

When I earlier addressed you, Mr

C h a i r, a n d y o u r a i s e d t h e q u e s t i o n , o n e , t h a t I s h o u l d
telephone her to find out about what happened in the
10

accident.

The second part of that, was when you said that

you might want her to explain under oath.
CHAIRPERSON:

Ye s .

ADV SHAKOANE SC: By way of an affidavit…[intervenes].
CHAIRPERSON:

Ye s , w e l l I d i d n ’ t s a y a f f i d a v i t I s a i d I

wanted her here on the witness stand.
ADV SHAKOANE SC:
CHAIRPERSON:

Ye s .

ADV SHAKOANE SC:
CHAIRPERSON:
20

Oh, under oath?

Ye s , I … [ i n t e r v e n e s ] .

To s u p p o r t h e r o w n a p p l i c a t i o n f o r a

postponement.
ADV SHAKOANE SC:

Ye s , I w o u l d p r o b a b l y s a y, t h a t

would have been the – given the circumstances and my
limited

position,

having

been

instructed

under

these

circumstances, the best way would be for her to be given
that opportunity…[intervenes].
Page 60 of 74

24 JULY 2020 – DAY 237
CHAIRPERSON:
Shakoane,

all

I
of

us

kind

of

who

sympathise

have

with

practiced

you

know

Mr
that

som etimes you get put in a difficult position by a client
where you are instructed late and it becomes difficult
b e c a u s e y o u c a n ’ t d e a l w i t h c e r t a i n t h i n g s , y o u k n o w,
because

you

simply

haven’t

been

given

enough

time

but…[intervenes].
ADV SHAKOANE SC:

But in this instance, perhaps, Mr

C h a i r, I w a s a c t u a l l y t a k i n g a d v a n t a g e o f t h a t s u g g e s t i o n
10

that came from you to say – because it arose in the course
o f a d d r e s s i n g w h a t i s s t a t e d i n t h e l e t t e r.
CHAIRPERSON:

But you see, you see part of the problem

is, you have already moved the application.
ADV SHAKOANE SC:
CHAIRPERSON:

Ye s .

Those are matters that should have been

addressed even in an application and an affidavit before
we are here now and I was hoping that when we took a
break earlier she would be able to say yes I can be there
in an hour ’s time and I’ve made myself available to be
20

questioned by the Chairperson about my application for a
postponement and we would stand down she would come,
she would take the stand and I could ask some of the
questions to see if her answers would satisfy me that I
should grant her the postponement.

As things stand, I’m

disinclined to do so and I was thinking that she would be –
Page 61 of 74

24 JULY 2020 – DAY 237
she would come here and maybe her explanation would
persuade me otherwise. So I’m still going to hear what you
say but my inclination is that the application has got no
merit but I want to hear because you are still responding to
Mr Soni, in case there is something that persuades me
otherwise.
ADV SHAKOANE SC:
CHAIRPERSON:

Ye s .

Ja.

ADV SHAKOANE SC:
10

But perhaps that could be, Mr

C h a i r, w h e r e y o u d o n o t h a v e a n i n t e r v e n i n g i m p o s s i b i l i t y
as of the sort that we have.

If it was only the scenario as

painted by my learned friend, Mr Soni, I would say the
c o m m e n t r i g h t n o w, f r o m t h e C h a i r, t o s a y w i t h a l l t h a t ’ s
there the Chair will be disinclined to allow that opportunity
but now you have an intervening impossibility which is not
of the making of her own and in…[intervenes].
CHAIRPERSON:

Well you see, as things stand, the thing

about – I haven’t seen the pictures I hope they’re available
now I should see them as soon as possible.
20

Except for

that issue, because you said you saw the pictures of the
car

which

gave

you

the

impression

that

this

was

an

accident, I think that’s what you said, except for that part,
my inclination, my prime facie view is that there is no merit
in this application for a postponement and if she was here I
w o u l d b e i n c l i n e d t o d i s m i s s i t a n d s a y, l e t ’ s s t a r t b u t t h e r e
Page 62 of 74

24 JULY 2020 – DAY 237
is a reality that she is not here now and it may be that
w h e n I s e e t h e p i c t u r e s o f t h e c a r, a l s o , I m a y t a k e t h e
view that, well maybe, what happened may have caused
her some emotional trauma.

So – but maybe I think the

next thing that we should talk about is, have you received
i n s t r u c t i o n s w h e t h e r, i f w e w e r e t o p o s t p o n e t o t o m o r r o w
she would make herself available?
ADV

SHAKOANE

SC:

I

just

wanted

to

get

the

response

from

the

clear…[intervenes].
10

CHAIRPERSON:
ADV

The response.

SHAKOANE

SC:

The

clear

a t t o r n e y.
CHAIRPERSON:

O k a y.

ADV SHAKOANE SC:
CHAIRPERSON:

Maybe if I’m given a minute.

Ja, no that’s fine.

Do you need us to

adjourn for five minutes, it looks like you may – you are
given very detailed instructions or are you about to be
ready?
ADV SHAKOANE SC:
20

CHAIRPERSON:

Ye s m a y b e , f i v e m i n u t e s C h a i r.

O k a y, w e ’ l l t a k e a s h o r t a d j o u r n m e n t , I ’ l l

give you about nine minutes we’ll resume at a quarter to
one.
INQUIRY ADJOURNS
INQUIRY RESUMES
I N Q U I RY R E S U M E S
Page 63 of 74

24 JULY 2020 – DAY 237
CHAIRPERSON:
o f a c a r.

. . . t h a t i s s o u g h t t o b e m a d e . I s e e a si d e

I t a p p e a r s t h a t t h e t y r e i s f l a t a n d j u st a b o v e t h e

t y re i t l o o k s l i ke t h e c a r m a y h a v e s c ra t c h e d so m e t h i n g a n d
t h e n – a n d t h e o t h e r p i ct u r e i t i s a l s o s h o w s t h e t y re t h a t
s h o w s p a rt s t h e r e o f t h a t a re t o r n a n d t h e r e i s – i t l o o k s l i ke
t h e c a r m a y h a v e s c ra t c h e d s o m e s u rf a c e o r s o m e t h i n g . A n d
t h e n t h e t h i rd p i c t u r e I d o n o t k n o w w h a t i t s h o w s.

I see

s o m e b o d y’s f i n g e r o r t h u m b b u t I d o n o t k n o w – I a m n o t
s u r e w h a t i t s h o w s.
10

What do you say the point is about the

p i ct u r e s ? W h a t d o t h e y s h o w ?
ADV SHAKOANE SC:

I t j u st s h o w s t h e – f r o m t h e r e i t

s h o w s t h e t y r e t h a t h a d s u ff e r e d t h e – t h a t h a s b e e n a ff e ct e d
b y t h e b u r st i n g a n d t h e e xt e n t o f i t . A n d t h e n t h e r e i s t h e –
w h a t M r C h a i r y o u d e s c ri b e a s a s c ra t c h – a s c r a t c h e d p a rt
o f t h e v e h i cl e o n t h e si d e .
CHAIRPERSON: Hm.
A D V S H A K O A N E S C : B u t t h e t h i r d p i ct u r e .
CHAIRPERSON: Hm.
A D V S H A K O A N E S C : I a m n o t a b l e t o re a l l y m a ke o u t w h a t
20

i t i s.
C H A I R P E R S O N : Ye s.
A D V S H A K O A N E S C : F r o m t h a t p i ct u r e .
CHAIRPERSON:

Hm.

B u t w o u l d i t b e c o rr e ct t o s a y y o u

h a ve n o t b e e n t o l d t h a t s h e w a s i n j u r e d ?
ADV SHAKOANE SC: No.
Page 64 of 74

24 JULY 2020 – DAY 237
CHAIRPERSON: Ja.
A D V S H A K O A N E S C : Ye s. T h a t i s – t h a t i s c o rr e ct .
CHAIRPERSON:

A n d o b v i o u sl y i f s h e w a s i n j u r e d , s h e

would have told you.
A D V S H A K O A N E S C : T h a t i s c o rr e ct – ye s.
CHAIRPERSON:

She would have said that ja.

What you

h a ve b e e n t o l d i s t h a t a s a re s u l t o f w h a t h a p p e n e d s h e d o e s
n o t f e e l e m o t i o n a l l y f i n e t o a p p e a r.
ADV SHAKOANE SC: Hm.
10

CHAIRPERSON:

Ja.

I t h i n k yo u m a y h a v e u s e d – I d o n o t

k n o w i f yo u u s e d t ra u m a t i s e d e a rl i e r o n ?
A D V S H A K O A N E S C : Ye s t h a t – I a l s o u s e d t h a t t e r m j a .
CHAIRPERSON:

Ja.

I s t h a t t h e t e rm t h a t ca m e f r o m h e r o r

t h a t w a s y o u r u n d e r st a n d i n g ?
ADV SHAKOANE SC: No from me.
C H A I R P E R S O N : Yo u u n d e r st a n d i n g j a
A D V S H A K O A N E S C : Ye s.
CHAIRPERSON:

Okay but she said she emotionally she

does not feel.
20

A D V S H A K O A N E S C : Ye s.
C H A I R P E R S O N : G o o d e n o u g h t o a p p e a r. A n d s h e s a y s s h e
d o e s n o t f e e l t h a t t o m o r r o w s h e w o u l d st i l l b e – s h e w o u l d
be fine.
ADV SHAKOANE SC: She would have recovered.
C H A I R P E R S O N : To a p p e a r.
Page 65 of 74

24 JULY 2020 – DAY 237
A D V S H A K O A N E S C : F r o m t h a t y e s.
CHAIRPERSON:

Yo u – w e l l I d o n o t k n o w i f t h e r e i s

a n yt h i n g f u rt h e r y o u a r e g o i n g t o sa y.
A D V S H A K O A N E S C : J u st t o
C H A I R P E R S O N : Ye s.
A D V S H A K O A N E S C : S o rr y – s o r r y Mr C h a i r.
CHAIRPERSON:

J a I w a s s a yi n g I d o n o t k n o w i f y o u h a v e

a n yt h i n g f u rt h e r t o s a y.

I t h i n k I m u st g i v e y o u a c h a n c e t o

s a y w h a t e v e r e l s e y o u w a n t e d t o s a y.
10

A D V S H A K O A N E S C : Ye s.
C H A I R P E R S O N : I n r e s p e ct o f …
ADV SHAKOANE SC:

The – what I wanted to say Mr Chair

is also the following. The – the information I have is that the
st a t e m e n t t h a t o n t h e 1 3 J u l y s h e d i d n o t a n s w e r n o r
re s p o n d t o a ca l l f ro m m y l e a r n e d f ri e n d M r S o n i i s i n c o r r e ct .
S h e – w h e n t h a t c a l l c a m e m y u n d e r st a n d i n g i s t h a t s h e w a s
a t co u rt a n d s h e h a d a ct u a l l y re t u r n e d t h e c a l l .
CHAIRPERSON: Hm.
ADV SHAKOANE SC: And secondly which is what she – she
20

w o u l d d e a l w i t h i n t h e e v e n t i f s h e h a d h a d t h e o p p o rt u n i t y t o
d o t h e a ff i d a vi t .

Secondly it is the – the matter relating to

t h e co n s u l t a t i o n o f n i n e [ i n d i st i n ct ] s h e s a y s i t i s n o t c o r r e ct
t h a t i t w e n t w e l l a n d s h e w o u l d h a ve h a d t o e x p l a i n a l s o
what made it not to go well and to fail with her having to go
the route she opted.
Page 66 of 74

24 JULY 2020 – DAY 237
C H A I R P E R S O N : Yo u r v o i c e g o e s d o w n f r o m t i m e t o t i m e .
A D V S H A K O A N E S C : S o rr y.
CHAIRPERSON: Mr Shakoane and then I cannot hear you.
A D V S H A K O A N E S C : Ye s s h e s a y s i t i s n o t co r re ct t h a t t h a t
c o n su l t a t i o n w e n t w e l l a n d s h e w o u l d b e – s h e w o u l d h a d t o
explain what made it not to go well.
CHAIRPERSON: Hm.
ADV SHAKOANE SC:

B u t a s a f i n a l su b m i s si o n o n m y p a rt

and on her behalf Mr Chair I want to believe that the – if the
10

c o m m u n i c a t i o n – t h i s i s t h e f i r st p a rt .

If the communication

h a d o n 2 7 o f J u n e i n r e s p e ct o f t h e – M r B o t e s a n d t h e n h e
t e st i f i e s o n t h e 1 s t i t i s o n l y r e a s o n a b l e t h a t s h e w o u l d h a v e
h a d t o m a k e t h e r e q u e st s h e d i d a n d i n m y s u b m i s si o n i f o n e
l o o k s a t w h a t i s co n t a i n e d f o r e x a m p l e a t p a r a g r a p h 6 i t
could not have been that he has not responded to under
t h o se ci r c u m st a n c e s w h i ch w o u l d h a v e a ff o r d e d h e r t h e
o p p o rt u n i t y t h a t s h e – t h a t h e so u g h t i n o r d e r t o d e a l w i t h
the matter at the time.
S e c o n d l y a n d l a s t l y i t – u n d e r t h e s e ci r c u m st a n c e s
20

y o u m a y n o t M r C h a i r i n t h e i n t e r e st o f f a i r n e s s i g n o r e t h e
f a ct o f t h i s i n t e r v e n i n g i n ci d e n t o f l a st n i g h t .
CHAIRPERSON:

One that as I said earlier on one would

h a ve t h o u g h t t h a t i f i t w a s a n i m p o rt a n t f a ct o r f o r t h e
p o st p o n e m e n t w o u l d h a v e b e e n g i v e n t o yo u e i t h e r l a st n i g h t
o r e a rl y t h i s m o r n i n g t o s a y s o m e t h i n g e l se h a s h a p p e n e d
Page 67 of 74

24 JULY 2020 – DAY 237
which is not – you are not going to rely on to move the
a p p l i ca t i o n .

T h i s i s w h a t h a s h a p p e n e d i r re s p e ct i v e o f w h a t

t h e g r o u n d s t h a t m a y h a v e b e e n t h e r e f o r a p o st p o n e m e n t
a p p l i ca t i o n

here

is

what

has

i m p o s si b l e f o r m e t o a p p e a r.

happened

that

makes

it

And of course, I – I have no

d o u b t t h a t i n a l l p ro b a b i l i t y w h e n y o u st o o d u p t o a d d r e s s m e
y o u w o u l d h a v e w a n t e d t o ra i se t h a t q u i t e u p f ro n t .

To s a y

w h a t e v e r h a p p e n s h e re i s t h e si t u a t i o n t h a t h a s h a p p e n e d .
But I had to ask why is she not here because I said she
10

s h o u l d b e t o l d t h a t I w a n t h e r t o b e h e re s o t h a t i f h e r
a p p l i ca t i o n f o r a p o st p o n e m e n t i s n o t s u c c e s sf u l , w e c a n
proceed. It was only then that I was told by you and I do not
k n o w w h e t h e r y o u w e r e h e a ri n g f o r t h e f i r st t i m e o r y o u h a d
h e a r d i t b u t I w a s t o l d a b o u t t h i s i n ci d e n t o f y e st e r d a y. S o I
a m si m p l y s a yi n g t h e r e i s t h a t c o n c e r n .
ADV SHAKOANE SC:

M r C h a i r t h e – p e rh a p s I s h o u l d st a rt

h e r e a n d i t i s w h a t I s o m e t i m e s e v e n s a y i n – i n a co u rt
a d d r e s s.

The – and I may say this.

W h e n I a d d re s s e d yo u

in response to that I did indicate that at the time when this
20

c a l l c a m e f r o m t h e S e cr e t a ri a t t h a t d a y t o s a y s h e sh o u l d
a l s o b e p r e s e n t I w a s i n f o rm e d a n d m y q u e st i o n w a s , i s s h e
i n a p o si t i o n t o b e a v a i l a b l e ?
t h a t a c ci d e n t .

And I was then informed of

In the plan of which is what I preface by

s a yi n g I n o r m a l l y s a y i t e v e n i n c o u rt a d d r e s s. I n t h e l i n e- u p
o f m y a d d r e s s t o y o u t h e l a st p a rt w o u l d h a v e b e e n t o
Page 68 of 74

24 JULY 2020 – DAY 237
m e n t i o n t h a t a s p e ct b e c a u s e I h a d t o st i l l v e ri f y c e rt a i n
a s p e ct s o f t h e a t t o r n e y.
C H A I R P E R S O N : Ye s. O ka y. O ka y.
A D V S H A K O A N E S C : S o i t w a s st i l l g o i n g t o b e m e n t i o n e d .
C H A I R P E R S O N : Ye s. O ka y.
ADV SHAKOANE SC:

B u t i t s o h a p p e n s t h a t i n co u rt t h e –

f ro m t h e b e n c h t h e r e i s i n t e r v e n t i o n .
CHAIRPERSON: Ja.
A D V S H A K O A N E S C : T h e n i t p r e - e m p t s s o m e t h i n g t h a t yo u
10

st i l l g o i n g t o d e a l w i t h i t .
CHAIRPERSON:

Ye s.

No, no that is fine.

I t a ke i t y o u a r e

d o n e n o w.
A D V S H A K O A N E S C : Ye s. S o w h a t sh e w o u l d a l s o re q u e st
i n t h e f a ce o f t h i s w o u l d b e t h a t yo u co u l d h a v e h e r a ff i d a vi t
f i l e d b y t h e e n d o f n e xt w e e k w h i c h i s 3 1 J u l y 2 0 2 0 i f y o u
c a n m e e t M r C h a i r t h a t [ i n d i st i n ct ] .
CHAIRPERSON:

O k a y.

Okay

a l ri g h t

thank

yo u

Mr

Shakoane.
A D V S H A K O A N E S C : T h a n k y o u C h a i r.
20

CHAIRPERSON:

I am going – I am not going to give

d e t a i l e d r e a s o n s b u t i f t h e y a re r e q u i r e d , t h e y ca n b e g i ve n
i n d u e co u r s e .

S a v e f o r t h e i s s u e o f w h a t m a y h a ve

h a p p e n e d t o h e r y e st e r d a y, l a st e v e n i n g a b o u t w h i c h t h e r e i s
n o t m u c h i n f o rm a t i o n p l a c e d b e f o r e m e i n t e r m s o f a t yr e
b u r st o r t yr e p u n ct u r e e v e r yt h i n g t h a t – t h e a p p l i c a t i o n t h a t
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24 JULY 2020 – DAY 237
J u d g e M a k h u b e l e h a s b ro u g h t f o r t h e p o st p o n e m e n t o f t h e
h e a ri n g o f h e r e vi d e n c e d o e s n o t r e v e a l a n y g o o d c a u se f o r
a p o st p o n e m e n t a n d a ct u a l l y e v e r yt h i n g e l se o n w h i c h t h e
l e t t e r s – t h e l e t t e r s t h a t w e re p u t u p r e a d i n g o f t h o s e l e t t e r s
re v e a l s t h a t t h e g r o u n d s o f t h e a p p l i c a t i o n a s r e f l e ct e d i n
t h o se l e t t e r s h a v e n o m e ri t w h a t s o e v e r.
W i t h re g a r d t o t h e i s s u e o f t h e – h o w s h e m a y h a v e
b e e n a ff e ct e d b y t h e i n ci d e n t w h e n a s I u n d e r st a n d t h e
p o si t i o n , sh e h a d a t y r e p u n ct u r e l a st n i g h t n o t e n o u g h
10

i n f o r m a t i o n i s p l a c e d b e f o re m e t o re a c h a f i rm c o n cl u si o n
b u t t h e f a ct o f t h e m a t t e r i s t h a t s h e i s n o t h e re n o w.
It may or may not be that in due course when all the
f a ct s a r e p l a c e d b e f o r e m e i n re g a rd t o t h a t i n ci d e n t , I m a y
f o r m t h e vi e w t h a t i n d e e d t h a t w a s a g o o d g r o u n d .

That

m a y b e I w o u l d co m e t o t h e c o n cl u si o n t h a t i t w a s n o g o o d
g r o u n d f o r a p o st p o n e m e n t . B u t f a c e d w i t h t h e si t u a t i o n t h a t
w e a r e f a c e d w i t h I h a v e t o p o st p o n e t h e h e a ri n g b e ca u s e
s h e i s n o t h e r e a n d I a m t o l d t h a t a s a r e s u l t o f t h e i n ci d e n t
y e st e r d a y s h e i s n o t i n a n e m o t i o n a l st a t e t h a t w o u l d a l l o w
20

h e r t o b e h e re t o g i v e e v i d e n c e .
This

has

i n c o n ve n i e n c e .
e vi d e n c e .

caused

the

c o m m i s si o n

a

lot

of

T h i s d a t e w a s s e t a si d e f o r h e r t o g i ve
As

Mr

Soni

indicated

according

to

correspondence, she had indicated that she was available
f o r t o d a y.

O f co u r s e , s h e w o u l d n o t h a v e k n o w n w h a t w a s
Page 70 of 74

24 JULY 2020 – DAY 237
going

to

happen

y e st e r d a y

but

the

application

for

a

p o st p o n e m e n t h a d b e e n d e c i d e d u p o n b e f o r e t h e i n ci d e n t o f
y e st e r d a y.

So

sh e

had

intended

to

apply

for

the

p o st p o n e m e n t o f t h e h e a ri n g o f h e r e vi d e n c e a n d a s I sa y a l l
t h e g r o u n d s t h a t s h e r e l i e d o n i n t h e co r re s p o n d e n c e w h i c h
a r e t h e g r o u n d s t h a t p r e ce d e d t h e i n ci d e n t o f y e st e rd a y d o
n o t r e v e a l a n y m e ri t w h a t s o e v e r.
T h i s co m m i s si o n i s w o r ki n g u n d e r v e r y se ri o u s t i m e
c o n st r a i n t s. I t h a s g o t t o f i n i s h i t s w o r k w i t h i n a c e rt a i n t i m e
10

t h a t h a s b e e n l a i d d o w n b y t h e c o u rt a n d i t c a n n o t a ff o r d t o
h a ve p o st p o n e m e n t s w h i ch c a n b e a v o i d e d .
B u t a s I h a v e s a i d I w i l l p o st p o n e t h e h e a ri n g o f
J u d g e M a k h u b e l e ’s e vi d e n c e b e c a u s e o f t h e r e a l i t y t h a t t h e
c o m m i s si o n i s f a c e d w i t h .

I a m g o i n g t o p o st p o n e i t t o a

s p e ci f i c

was

date.

Th e r e

an

indication

in

the

c o r r e s p o n d e n c e f r o m h e r l a w y e r s t h a t s h e w a s a s ki n g f o r a
m o n t h – a p o st p o n e m e n t o f a b o u t a m o n t h . I a m n o t g o i n g t o
p o st p o n e t h e h e a ri n g o f h e r e vi d e n c e f o r a m o n t h .

I am

g o i n g t o p o st p o n e i t f o r a w e e k.
20

She has had ample time to do what needs to be done.
H e r C o u n s e l h a s s a i d s h e h a s o ff e r e d t o f i l e h e r a ff i d a vi t s b y
e n d o f n e xt w e e k.

I a m g o i n g t o d i r e ct t h a t s h e s h o u l d f i l e

h e r a ff i d a vi t s b y c l o s e o f b u si n e s s o n We d n e s d a y n e xt w e e k
a n d I a m g o i n g t o p o st p o n e t h e h e a ri n g o f h e r e vi d e n c e t o
M o n d a y t h e 3 A u g u st 2 0 2 0 a t t e n o ’ cl o c k.
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24 JULY 2020 – DAY 237
N o w i n o rd e r t o d o t h a t t h e co m m i s si o n w i l l h a v e t o
m o v e – c h a n g e i t s p l a n s f o r t h a t M o n d a y b e c a u se t h e r e w a s
o t h e r e vi d e n c e t h a t I w a s g o i n g t o h e a r o n t h a t M o n d a y.

So

t h e c o m m i s si o n w i l l h a ve t o m o v e t h a t e vi d e n ce t o t h e
f o l l o w i n g d a y a n d t h i s w i l l c a u s e so m e i n c o n ve n i e n ce t o
other people.
B u t I a m d e t e r m i n e d t h a t w e m u st h e a r – I m u st h e a r
h e r e v i d e n c e a n d i t m u st n o t t a k e l o n g b e f o r e I h e a r h e r
e vi d e n c e .
10

F u rt h e r m o r e , u n f o rt u n a t e l y I a m – I f i n d i t n e c e s s a r y
t h a t I i s s u e a d i re ct i v e t h a t sh e m u st a p p e a r b e f o r e t h i s
c o m m i s si o n o n t h a t d a y.

I would not normally do that

a g a i n st a J u d g e b e c a u s e i f a s C h a i rm a n o f t h e c o m m i s si o n I
re q u e st t h a t a J u d g e a p p e a r s b e f o r e t h e co m m i s si o n I e x p e ct
that that would be enough.

It has been enough in regard to

m a n y o t h e r p e o p l e w h o a r e n o t j u d g e s.

When they get a

re q u e st f r o m t h e c o m m i s si o n t h a t I w o u l d l i k e t h e m t o f i l e
a ff i d a vi t s o r t o a p p e a r t h e y h a v e w i l l i n g l y a g r e e d t o a p p e a r
a n d t o f i l e a ff i d a vi t s w i t h o u t h a vi n g t o b e c o m p e l l e d .
20

A n d w i t h r e g a rd t o t h e f i l i n g o f t h e a ff i d a vi t s b y J u d g e
M a k h u b e l e I a m a l s o g o i n g t o m a k e a d i r e ct i v e .
T h e d i r e ct i ve t h a t I i s s u e i s a d i r e ct i v e p r o vi d e d f o r i n
Regulation 10(6) of the Regulations of this commission.
That sub regulation reads as follows and I quote:
“ F o r t h e p u r p o se s o f c o n d u ct i n g a n i n v e st i g a t i o n t h e
Page 72 of 74

24 JULY 2020 – DAY 237
C h a i r p e r s o n m a y d i re ct a n y p e r s o n t o s u b m i t a n
a ff i d a vi t o r a ff i r m d e cl a r a t i o n o r t o a p p e a r b e f o re t h e
c o m m i s si o n

to

give

e vi d e n c e

or

to

p r o d u ce

any

d o cu m e n t i n h i s o r h e r p o s s e s si o n o r u n d e r h i s o r h e r
c o n t r o l w h i c h h a s a b e a ri n g o n t h e m a t t e r b e i n g
i n v e st i g a t e d a n d m a y e x a m i n e s u c h p e r s o n . ”
T h e r e f o r e , t h i s i s t h e o r d e r/ d i re ct i v e :
1 . T h e h e a ri n g o f t h e e vi d e n c e o f J u d g e M a k h u b e l e i s
p o st p o n e d t o M o n d a y t h e 3 A u g u st 2 0 2 0 i n t h i s v e n u e .
10

2 . I n t e rm s o f R e g u l a t i o n 1 0 ( 6 ) o f t h e R e g u l a t i o n s o f t h i s
c o m m i s si o n I d i r e ct J u d g e M a k h u b e l e t o d e l i v e r t o t h e
c o m m i s si o n o n o r b e f o r e We d n e sd a y – w h a t i s t h e d a t e
o n We d n e s d a y ?

29.

O n We d n e s d a y – i s i t 2 9 ?

Ja.

O n o r b e f o r e We d n e s d a y 2 9 J u l y 2 0 2 0 a n a ff i d a vi t o r
a ff i rm e d

d e cl a r a t i o n

or

a ff i d a vi t s

or

a ff i r m e d

d e cl a r a t i o n s r e s p o n d i n g t o t h e a ff i d a vi t s o f M s N g o y e ,
M a rt h a

Ngoye,

Mr

D i n g i s w a yo ,

Mr

Mogashoa,

Mr

Achmat and Mr Botes insofar as each one of those
a ff i d a vi t s m a y r e l a t e t o h e r o r i m p l i c a t e h e r o r m e n t i o n
20

o r h a v e s o m e a l l e g a t i o n a b o u t h e r.
3 . J u d g e M a k h u b e l e i s d i re ct e d i n t e r m s o f R e g u l a t i o n
1 0 ( 6 ) o f t h e R e g u l a t i o n s o f t h i s c o m m i s si o n t o a p p e a r
i n p e r so n b e f o re t h i s co m m i s si o n a t t e n o ’ c l o c k o n
M o n d a y t h e 3 A u g u st 2 0 2 0 f o r t h e p u r p o s e o f g i vi n g
e vi d e n c e a n d t o b e q u e st i o n e d w i t h r e g a r d t o v a ri o u s
Page 73 of 74

24 JULY 2020 – DAY 237
a l l e g a t i o n s m a d e i n t h e a ff i d a vi t s o f t h e p e r so n s t o
w h o m I h a v e r e f e r re d i n t h i s d i r e ct i v e .
T h a t i s t h e d i r e ct i v e .

We w i l l t h e n n o w a d j o u r n .

proceedings

adjourned

are

then

and

on

Monday

The
the

c o m m i s si o n w i l l h e a r e vi d e n ce f r o m t h e f o rm e r M i n i st e r o f
P o l i c e M r N k o si N a t h i N h l e k o a n d d u ri n g t h e w e e k o t h e r
w i t n e s s e s a l s o i n t h e L a w E n f o r ce m e n t s e ct o r. We a d j o u r n .
R E G I S T R A R : A l l ri s e .
I N Q U I RY A D J O U R N S TO 2 7 J U LY 2 0 2 0
10

Page 74 of 74