By Johnathan Paoli
The Madlanga Commission has dismissed a recusal application brought by political fixer Brown Mogotsi against the inquiry’s chief evidence leader, Mathew Chaskalson, clearing the way for Mogotsi’s testimony to continue with Chaskalson leading the questioning.
Delivering the judgement on Friday, Commission chairperson Mbuyiseli Madlanga said reasons for the ruling would be delivered during the course of next week or the week after, but stressed that proceedings would continue because there was no interdict in place.
The ruling came after a day-long hearing in which Mogotsi’s legal representative, advocate Nthabiseng Mohomane, argued that WhatsApp exchanges and telephone conversations between Mogotsi and Chaskalson created a “perception of bias” and a reasonable apprehension that the evidence leader was not impartial.
Mohomane argued that Chaskalson had improperly entertained communications with Mogotsi during the March testimony of businessman Suliman Carrim.
“Our recusal application is based on what we perceive as bias and impartiality. This stems from the two days in which Suliman Carrim appeared before the commission on March 9 and 10,” she said.
She alleged that Chaskalson had promised Mogotsi protection if he supplied damaging evidence against Carrim.
“Advocate Mathew Chaskalson promised to help and protect Mogotsi if he provided adverse evidence against Carrim,” Mohomane said.
The application relied heavily on WhatsApp exchanges between the pair, including a message from Chaskalson stating: “I think so too. But you can’t mess me around.”
Mohomane argued that the message created the impression that Mogotsi was being pressured to provide incriminating information.
However, commissioners repeatedly challenged the legal basis and factual foundation of the recusal bid.
Madlanga questioned why Chaskalson should have refused to hear potentially relevant information.
“Why would Chaskalson want to meet Mogotsi if he was hiding anything?” Madlanga asked.
He also noted that the available evidence suggested Mogotsi was the one persistently attempting to contact Chaskalson.
“Mogotsi was the one knocking on the door of the chief evidence leader, seeking to be assisted, and not the other way around. There were numerous missed calls from Mogotsi, indicating Mogotsi’s desperation,” Madlanga said.
Commissioner Sesi Baloyi sharply criticised what she described as the selective presentation of WhatsApp messages.
She said the WhatsApp exchanges must be read in full context, noting that Chaskalson’s “don’t mess me around” remark came after Mogotsi had failed to attend scheduled meetings with investigators.
“When the full context is considered, there is no basis for presenting the messages in the selective way Mohomane had done,” she said.
Baloyi also rejected Mohomane’s argument that bias was subjective, and demanded that Mohomane retract claims that Chaskalson had promised Mogotsi immunity or protection in exchange for evidence.
“Where in the WhatsApp chats does Chaskalson tell Mogotsi that if he gives information about Carrim, he’ll come out unscathed?” Baloyi asked.
After conceding there was no such wording in the messages, Mohomane withdrew the allegation, saying only that “an impression was created”.
Commissioner Sandile Khumalo also questioned the legal basis for the application.
“There’s no information suggesting that Chaskalson wanted false information from Carrim. If Chaskalson gets information from Mogotsi, what is wrong with that? How is it substantive unfairness?” Khumalo asked.
In opposing the application, advocate Adila Hassim accused Mogotsi of manipulating evidence and abusing the commission’s processes.
“The application is legally misconceived and a deliberate misrepresentation of facts and abuse of the commission’s process,” Hassim said.
She stressed that Chaskalson was not a decision-maker within the commission and that the powers rest with the commissioners.
Hassim further accused Mogotsi of tampering with WhatsApp records by deleting messages and calls that undermined his version of events and argued that the evidence showed Mogotsi had repeatedly sought out Chaskalson and failed to attend arranged meetings with investigators.
Hassim went further, recommending investigations into Mogotsi for possible perjury, forgery and contravention of Section 5 of the commission’s regulations.
Following the dismissal of the recusal application, Mogotsi’s legal team indicated that it intended launching a review application against the ruling.
Despite the setback, Mogotsi later agreed to proceed with testimony after initially refusing to answer questions on the basis that he did not want to incriminate himself.
Madlanga then instructed Chaskalson to continue leading the evidence.
The commission continues.
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