By Johnathan Paoli
The Madlanga Commission has postponed the testimony of tenderpreneur Vusimusi “Cat” Matlala until 1 September after his legal team raised concerns about his impending criminal trial and sought records linked to a failed plea-and-sentence agreement in a separate case.
Matlala had been scheduled to appear before the commission on Wednesday, but his lawyer, Advocate Anneline van den Heever, said she was not yet in a position to advise him properly on the evidence he could give without potentially prejudicing his fair-trial rights.
The commission ordered Matlala to file a statement by 29 July. His evidence will begin on 1 September and continue until it has been completed.
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Matlala is due to stand trial in the Johannesburg High Court from 20 July alongside four co-accused on charges including attempted murder. That trial is separate from the fraud, corruption and money-laundering case arising from the SAPS Medicare24 tender, in which a proposed Section 105A plea-and-sentence agreement was recently declared null and void.
Van den Heever told the commission that she required access to material generated during the abandoned plea negotiations before she could advise Matlala about matters that might overlap with his criminal cases.
“We respectfully submit that for him to deal with some of the issues, which issues play a very big part in the up and coming trial that starts in four days, would violate his constitutional right to actually challenge the evidence,” van den Heever said.
Evidence leader Advocate Mahlape Sello told the commission that Matlala had initially been subpoenaed to appear on 7 July before the matter was postponed to Wednesday.
Van den Heever then sought a further postponement, saying her team had emailed an unsigned version of Matlala’s affidavit the previous evening. She said the document had since been signed and commissioned after arrangements were made at the prison on Wednesday morning.
She argued that requiring Matlala to testify days before the start of his criminal trial could prejudice his constitutional rights.
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In support of her application, she referred to comments made during former president Jacob Zuma’s Constitutional Court litigation involving the Zondo Commission.
Commission chair Justice Mbuyiseli Madlanga challenged her reliance on that judgment, noting that the comments formed part of a minority judgment. He questioned whether they supported the broad proposition that an accused person should not testify before a commission until criminal proceedings had been finalised.
“Is the suggestion that any and everything that Mr. Matlala could ever say before this commission would be something that would be subject to the exercise of his section 35, right? Is that what’s being suggested?” Madlanga asked.
Van den Heever conceded that there were matters Matlala could theoretically answer, but said she could not yet distinguish those questions from potentially prejudicial issues without reviewing the records of the plea negotiations conducted before she joined his defence team.
She said she had not participated in the negotiations surrounding the abandoned Section 105A plea agreement and needed access to discussions involving prosecutors, investigators and Matlala before advising him.
Van den Heever also argued that Matlala had been unfairly portrayed as “the mastermind” behind allegations presented to the commission.
Madlanga repeatedly questioned why the failed plea agreement prevented Matlala from answering questions unrelated to the criminal proceedings.
“I am not interested in the nitty-gritty. I’m asking you a general question on those issues on which there is no question whatsoever. What would the basis of not continuing with those prior to the finalisation of the criminal process be?” he said
Van den Heever replied that, without the outstanding material, she could confidently allow Matlala to answer only limited questions, including whether he knew particular people. She warned that broader testimony could lead to inconsistencies or expose him to allegations of perjury.
The exchanges also dealt with claims that information relied on by KwaZulu-Natal police commissioner Lieutenant-General Nhlanhla Mkhwanazi and other witnesses had been obtained unlawfully.
Van den Heever argued that the commission should not rely on unlawfully obtained material, but Madlanga said the purpose of calling Matlala was to establish his version directly.
“This is why the commission wishes to hear from Matlala, to ascertain the facts directly from Matlala,” he said.
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Commissioner Sesi Baloyi also questioned the defence’s position, saying the abandoned plea agreement did not prevent the commission from carrying out its mandate.
She said Matlala could invoke his privilege against self-incrimination when appropriate and could tell the commission when he had no personal knowledge of a matter. That privilege did not amount to a blanket right to refuse to testify.
Baloyi repeatedly asked whether the defence’s position was effectively that Matlala would not give evidence until his lawyers received further material from the Investigating Directorate Against Corruption.
Sello opposed the postponement, describing the application as “a waste of time” because Matlala had previously provided a statement.
She argued that the commission’s timetable should not be determined by plea negotiations and warned that allowing possible future criminal discussions to delay witnesses could undermine the inquiry’s work.
IDAC senior investigator Brian Padayachee is expected to resume his testimony on Wednesday.
