By Johnathan Paoli
The Madlanga Commission is to lay criminal charges for failing to comply with a commission subpoena against dismissed former Crime Intelligence deputy head Major-General Feroz Khan, after finding that his failure to attend proceedings, even remotely, amounted to a “flagrant disregard” of the subpoena.
Commission Chairman Mbuyiseli Madlanga on Monday also rejected Khan’s latest month-long postponement application, saying he had ample time to prepare for his evidence and he could have attended virtually.
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“[Khan’s] non-appearance today is a flagrant disregard of a subpoena by this commission. And I repeat that it is unfortunate that his attorney is identifying himself with that flagrant disregard of the subpoena,” said Madlanga.
The application, delivered late on Sunday night, proposed that Khan be given roughly a month to prepare and provide his evidence in stages.
Khan’s attorney, Muhammed Vally, relied heavily on reports from psychiatrists who had assessed Khan.
Dr Naidu, the commission’s independent expert, had found that requiring Khan to testify in person on Monday could be “clinically counterproductive” and recommended that he testify remotely from a familiar environment, with shorter periods of evidence and predetermined breaks.
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Vally also relied on a report by a Dr Malapi, saying Khan had only recently been discharged from hospital and needed additional time to deal with the extensive evidence.
But Madlanga repeatedly questioned why Khan had not appeared remotely while his lawyers argued their objections.
“The problem with that is that it suggests that that is or should be the position from the time that Dr Malapi is writing that latest report. My point is Mr Khan has had a lot of time from donkeys ages ago,” Madlanga said.
Evidence leader Advocate Adila Hassim opposed the postponement, saying the commission had no objection to accommodating Khan’s medical condition but objected to his unilateral decision not to attend.
She said the commission had offered to accommodate Naidu’s recommendations, including virtual testimony, breaks between hearing days and a schedule of hearing dates.
Khan’s legal team, however, had not responded substantively to the proposal.
“We have a very, very grave concern with this application and the way it was brought. This is presented to the Commission as a fait accompli. Mr Khan is not present. He’s not in attendance despite a subpoena that is operative requiring him to be in attendance today,” Hassim said.
She disputed claims that Khan had been given critical evidence only shortly before his testimony was due to begin.
She said the commission’s first Rule 10.6 notice was sent to Khan on 5 June and that he had received the WhatsApp evidence by 24 June.
“Any attempts at explaining why Mr Khan is not ready are mere excuses, and I will not accept them,” Madlanga said.
He rejected the argument that Khan’s alleged deterioration justified his absence.
When pressed, Vally acknowledged that the claim that Khan had regressed after Naidu’s assessment was not contained in Malapi’s report and had instead been relayed to him by Khan’s family.
Madlanga questioned how the lawyer could make such a claim in an affidavit when he was not a psychiatrist.
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The commission is still to determine an application for part of his evidence to be heard in camera, with 6 October proposed as the date should that application succeed.
Meanwhile, taxi boss Oupa “Bafana” Sindane also suffered a setback on Monday when the Gauteng High Court struck off the roll his urgent application seeking to interdict the commission from hearing his testimony or reading his WhatsApp evidence into the record.
According to commission spokesperson Jeremy Michaels, Judge Richard Mkhabela struck the application off the roll with a punitive costs order.
The commission said the urgent application sought to prevent it from proceeding with his evidence.
The commission continues.
