By Johnathan Paoli
Madlanga Commission chair Mbuyiseli Madlanga has ruled that the commission can hear evidence contained in Vusimusi “Cat” Matlala’s failed plea and sentence agreement with the Investigating Directorate Against Corruption (IDAC), dismissing arguments by his lawyer that doing so would violate his constitutional rights and undermine the administration of justice.
Despite objections from Matlala’s advocate Anneline van der Heever, Madlanga ruled on Monday that the commission would proceed with Matlala’s testimony, although it would immediately halt proceedings should the High Court issue an order preventing it from doing so.
“I take the view that the Commission will proceed with the hearing of Mr Matlala’s testimony, and if an order, a High Court order, is obtained, one, reviewing and setting aside my ruling, and two, interdicting the continuation of the hearing of Mr Matlala’s testimony, the Commission will stop immediately upon receipt of that order,” Madlanga said.
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The ruling followed extensive arguments between Van der Heever and evidence leader Mahlape Sello over whether the commission could use statements and other documentation Matlala submitted during negotiations for a plea and sentence agreement with IDAC, which subsequently fell apart.
Van der Heever argued that the documents were protected by provisions of the Criminal Procedure Act (CPA), particularly section 105A, which regulates plea and sentence agreements, and that the state could not disclose or ventilate their contents after the agreement collapsed.
She maintained that all parties involved in the negotiations understood that the statements and draft agreement would fall away if the deal was not finalised.
According to Van der Heever, Matlala had also been given assurances by IDAC officials that he would not be required to testify before the Madlanga Commission and would be placed in a witness protection programme once the agreement was concluded.
She argued that allowing the commission to examine the material would set a dangerous precedent for future plea negotiations.
“If you allow this to happen, nobody will ever enter into a plea agreement with the state again,” Van der Heever said.
She further accused IDAC officials of acting improperly by handing the documents to the commission, arguing that the National Prosecuting Authority (NPA) had no legal authority to disclose the material, even if it had been requested through a subpoena.
Van der Heever also raised concerns about Matlala’s right to a fair trial, given that he is facing criminal charges relating to the allegedly corrupt Medicare24 contract, which formed part of the subject matter of his discussions with IDAC.
She argued that the commission’s use of the statement could prejudice his defence in the criminal proceedings and insisted that the documents should never have been placed before the inquiry.
But Sello rejected the defence’s arguments, telling the commission that Matlala’s legal representatives had known since September that the evidence leaders intended to examine the contents of his failed plea-deal statement.
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She took the commission through correspondence between the legal teams, arguing that Matlala’s lawyers had previously been informed of the intention to use the material but had failed to raise a formal objection at the time.
Sello said the evidence leaders had initially been prepared to deal with the statement during an in-camera hearing in October but subsequently decided that there was no need for the proceedings to be held in private.
She described the latest objections as “nothing but a stratagem” to frustrate the commission’s investigation and argued that the inquiry had the legal authority to subpoena relevant documents from the NPA.
Sello also argued that the commission could not ignore potentially relevant evidence simply because it had been submitted during negotiations for an agreement that was never concluded.
Responding to concerns about Matlala’s fair trial rights, she stressed that evidence given before the commission could not be used against him in his criminal trial.
Commissioners Sesi Baloyi and Sandile Khumalo also questioned Van der Heever’s position, particularly her argument that the commission could not use material that IDAC itself was permitted to use to pursue investigative leads.
Baloyi further questioned why the commission should be prevented from examining portions of Matlala’s statement concerning his appearance before Parliament’s ad hoc committee and his meeting with KwaZulu-Natal police commissioner Lieutenant-General Nhlanhla Mkhwanazi.
In delivering his ruling, Madlanga distinguished between the restrictions imposed by section 105A of the CPA in criminal proceedings and the commission’s powers as an inquiry.
Madlanga also rejected the arguments advanced by Van der Heever regarding section 204, which deals with the use of evidence by witnesses who may be implicated in criminal activity.
Following the ruling, Van der Heever indicated that she intended to urgently challenge the decision in court and asked that Matlala’s evidence be postponed pending the outcome of that application.
But Madlanga said the commission was operating under extremely tight deadlines and could not afford further delays, particularly given the repeated non-appearance of witnesses.
He said the commission risked being unable to hear all the evidence it intended to consider before its work was completed.
The commission continues.
