C O M MI S SI O N O F I N Q U I RY I N TO S TAT E C A P T U R E H E L D AT C I T Y O F J O H A N N ES B U R G O L D C O U N C I L C H A M B E R 1 5 8 C I VI C B O U L EVA R D , B R A A M FO N T EI N 2 1 J U LY 2 0 2 0 D AY 2 3 6 22 Woodlands Drive Irene Woods, Centurion TEL: 012 941 0587 FAX: 086 742 7088 MOBILE: 066 513 1757 info@gautengtranscribers.co.za 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: 21 JULY 2020 TRANSCRIBERS: B KLINE; Y KLIEM; V FAASEN; D STANIFORTH Page 2 of 15 21 JULY 2020 – DAY 236 P R O C E E D I N G S R E S U M E O N 2 1 J U LY 2 0 2 0 CHAIRPERSON: Good morning Mr Notshe, good morning e v e r y b o d y. A D V N O T S H E S C : G o o d m o r n i n g C h a i r. UNKNOWN PERSON: M o r n i n g C h a i r. C H A I R P E R S O N : Ye s. T h a n k y o u . ADV NOTSHE SC: C h a i r t h e – t o d a y s h e a ri n g s a r e i n re s p e ct o f t h e e v i d e n ce o f Mr D e s m o n d N a i r a n d M r L i n d a Mti. 10 C h a i r t h e r e a re – w e a re h a vi n g d i s c u s si o n s w i t h re p r e s e n t a t i v e s o f b o t h w i t n e s s e s. C a n w e a s k f o r t i m e j u st t o d i s cu s s w i t h t h e m a n d t h e n a p p r o a ch y o u i n c h a m b e r s a n d then we can then if we reach an agreement and then perhaps put the agreements on record? CHAIRPERSON: Let – let us have Counsel for Mr Nair as w e l l a s f o r M r Mt i p l a c e t h e m s e l v e s o n r e co r d . Yo u c a n j u st d o i t f r o m w h e r e y o u a r e y o u s w i t c h o n t h e m i cr o p h o n e y e s. ADV DORFLING SC: the name. G o o d m o rn i n g C h a i r D a n i e D o rf l i n g i s I r e p r e s e n t M r N a i r o n i n st r u ct i o n o f S i a s U l ri ch R o u x a n d A s s o ci a t e s. 20 CHAIRPERSON: Thank you. Thank you. A D V VA N D E R M E R W E : C h a i r m y n a m e i s [ i n d i st i n ct ] Va n d e r M e r w e f ro m [ n o t sp e a ki n g i n t o t h e m i c r o p h o n e ] . CHAIRPERSON: T h a n k y o u ve r y m u c h . Okay I will grant y o u a n o p p o rt u n i t y t o h a v e d i s c u s s i o n s w i t h t h e – w i t h t h e l e g a l r e p r e s e n t a t i v e s o f b o t h M r N a i r a n d Mr Mt i a n d t h e n I Page 3 of 15 21 JULY 2020 – DAY 236 c a n b e a p p ro a c h e d i n c h a m b e r s a s t o t h e w a y f o r w a rd . So m a y b e – w e m a y b e l o o ki n g a t a b o u t 3 0 m i n u t e s ? A D V N O T S H E S C : 3 0 M i n u t e s I t h i n k w o u l d b e s u ff i c i e n t . CHAIRPERSON: A b o u t 3 0 m i n u t e s. Okay we will adjourn t h e n a n d t h e n y o u w i l l l e t m e k n o w o n ce y o u a r e r e a d y. A D V N O T S H E S C : T h a n k yo u C h a i r. C H A I R P E R S O N : We a d j o u r n . R E G I S T R A R : A l l ri s e . CHAIRPERSON: 10 Ye s , M r N o t s h e h a v e y o u h a d a c h a n c e t o discuss with your colleagues? A D V N O T S H E S C : Ye s . C H A I R P E R S O N : R e p r e s e n t i n g M r M t i a n d M r N a i r. ADV NOTSHE SC: Ye s C h a i r w e h a v e d i s c u s s e d a n d w e have reached agreements. CHAIRPERSON: Hm. ADV NOTSHE SC: Insofar as Mr Mti’s matter is concerned the – we will provide Mr Mti with all the evidence – all the evidence that implicates him and it will be in the form of the link to the website of the commission where the evidence is 20 housed and also although the notices in terms Regulation 3.3 have been sent we will again give them the statements that we attach to those notices. This will be done before the end of business on Friday the 24th. And then two weeks thereafter Mr Mti will then… CHAIRPERSON: I am sorry I think you starting the matter – Page 4 of 15 21 JULY 2020 – DAY 236 you are not starting where it should start. As I understand M r M t i i s n o t h e r e t o d a y. ADV NOTSHE SC: Mr Mti. CHAIRPERSON: And the reason for that. ADV NOTSHE SC: Ye s . Mr Mti is not here today and Mr Va n d e r M e r w e i s h e r e r e p r e s e n t i n g M r M t i . C H A I R P E R S O N : Ye s . M a y b e – m a y b e t h e n w e s h o u l d s t a r t w i t h M r Va n d e r M e r w e j u s t s a y i n g s o m e t h i n g a b o u t t h a t a n d then he can also talk about what has been agreed and you 10 can confirm. M r Va n d e r M e r w e y o u c a n s p e a k f r o m w h e r e y o u a r e i f y o u j u s t s w i t c h i t o n – t h e m i c r o p h o n e o n . Ye s . A D V VA N D E R M E R W E : T h a n k y o u M r C h a i r. I confirm my appearance on behalf of Mr Mti. CHAIRPERSON: Ye s . If you are comfortable to move – remove your mask just for purposes of speaking feel free to do so. A D V VA N D E R M E R W E : I n d e b t e d t h a n k y o u M r C h a i r. I c o n f i r m t h a t m y o ff i c e h a s r e c e i v e d a N o t i c e o f S e t d o w n s i x working days prior to today’s date. 20 CHAIRPERSON: Hm. A D V VA N DER MERWE: I have informed unfortunately the notice was short. Mr Mti but B e i n g a n o ff i c e r o f t h e court, I thought it prudent to be present and not simply ignore the notice and we have reached certain agreements relating to the Provision of Evidential Material and the Page 5 of 15 21 JULY 2020 – DAY 236 response thereto in as far as it may be necessary for Mr Mti. CHAIRPERSON: O k a y. Thank you. So it looks like Mr Mti his lawyers received the notice late. A D V N O T S H E S C : Ye s . CHAIRPERSON: Yo u d o n o t k n o w w h y – w h a t b r o u g h t t h a t about do you? ADV NOTSHE SC: No Chair I do not know but Chair what is also is important to note is that up to now we had not 10 received the – a response to the 10.6 Notice that Mr Mti had been given. T h a t i s – h e h a s n o t p r o v i d e d a n a ff i d a v i t y e t . But despite that a notice had been – a Notice of Set down h a d b e e n s e r v e d o n h i m I t h i n k i t i s o n t h e 1 0 J u l y. A n d I d o not know why it was served late. CHAIRPERSON: Well as I understand from the discussion in chambers the position is that the notice notifying Mr Mti that today he is supposed to appear before the commission w a s r e c e i v e d r e c e n t l y a n d M r Va n d e r M e r w e s a y s a b o u t 10.6 or six working days. 20 A D V N O T S H E S C : Ye s . CHAIRPERSON: Ago that is probably about ten normal d a y s . I t s h o u l d h a v e b e e n s e n t o ff m u c h e a r l i e r. A D V N O T S H E S C : Ye s . CHAIRPERSON: So that is 1. 2. So Mr Mti is not here so we cannot proceed with regard Page 6 of 15 21 JULY 2020 – DAY 236 to his evidence because he is not here. But as I understand the position the legal representatives both the side of the commission and Mr Mti have reached an agreement in terms of which even if Mr Mti may have received previous statements a full set of the statements of witnesses who implicate him and the evidence will be identified to his lawyers and they can then reach that access that on the website of the commission. A D V N O T S H E S C : Ye s . 10 CHAIRPERSON: So they will be notified of the all the names of the witnesses who implicate him within a few days. ADV NOTSHE SC: Ye s w e h a v e g i v e n a n u n d e r t a k i n g t h a t that will happen before Friday the 24th. CHAIRPERSON: And Mr Mti has through his lawyers u n d e r t a k e n t o f u r n i s h a n a ff i d a v i t i n r e g a r d t o t h e e v i d e n c e that has been led against him. A D V N O T S H E S C : Ye s . CHAIRPERSON: 20 Even though he may reserve his rights in regard to disclosing his defence, in regard to the criminal m a t t e r. I s t h a t s o ? ADV NOTSHE SC: That is so Chair that will happen within fourteen days. CHAIRPERSON: Ja. ADV NOTSHE SC: After receipt of our notice. Page 7 of 15 21 JULY 2020 – DAY 236 CHAIRPERSON: Of your notification. ADV NOTSHE SC: Of our notification yes. CHAIRPERSON: Ye s . M r Va n d e r M e r w e y o u c o n f i r m t h a t that is the arrangement? ADV VA N DER MERWE: Mr Chair I confirm the arrangement. I specifically confirm. C H A I R P E R S O N : Ye s . A D V VA N D E R M E R W E : T h a t M r M t i ’s r i g h t t o n o t t o disclose his defence. 10 C H A I R P E R S O N : Ye s . A D V VA N D E R M E R W E : W i l l b e p r o t e c t e d i n h i s a ff i d a v i t . C H A I R P E R S O N : Ye s o k a y. A D V VA N D E R M E R W E : A n d i n f a c t , m a y n o t d e a l w i t h t h e facts specifically save to make statement that it may lead to unfair criminal trial which is currently being run in Pretoria. CHAIRPERSON: Ja okay alright. Thank you. So that will be the arrangement in regard to Mr Mti. A D V N O T S H E S C : Ye s . CHAIRPERSON: 20 T h e n a n d o n c e h e h a s f i l e d h i s a ff i d a v i t then a decision will be taken whether it is necessary to fix a n o t h e r d a t e f o r h i m t o a p p e a r. A D V N O T S H E S C : Ye s . C H A I R P E R S O N : O k a y. I n r e g a r d t o M r N a i r. ADV NOTSHE SC: In regard to Mr Nair Chair the 1. There is an application by Mr Nair to cross-examine Mr Page 8 of 15 21 JULY 2020 – DAY 236 Richard Le Roux and then 2. There are two outstanding a ff i d a v i t s . They are s t a t e m e n t s f o r n o w t h e y h a v e t o b e a ff i d a v i t s t h a t h a v e t o b e c o m m i s s i o n e d a n d m a d e a v a i l a b l e t o M r N a i r. W e h a v e a p r o b l e m w i t h o n e d e p o n e n t . H e – a p p a r e n t l y, h e – he has a virus – he has tested positive for the virus but we hoping that we think seven days from now he should be available to have the statement commissioned. The arrangement we have reached is that we get a – we are 10 unable to proceed today because in fairness Mr Nair would – should see those statements so that when he testifies, he testifies after he has seen the statements. So the arrangement is that by next week the 31 July he – the statements will be served on them and then – and then decide what – whether they want to respond to those statements and if they do, they will do so within fourteen days of the statements. And then they will then consider their position and then depending on a ruling regarding the issue of cross-examination of Le Roux and they may also 20 after they have seen the statements apply to cross-examine the other – the other two witnesses – potential witnesses as well. CHAIRPERSON: Counsel for Mr Nair are you able to confirm the arrangement? ADV DORFLING: Thank you Mr Chair yes. Perhaps I could Page 9 of 15 21 JULY 2020 – DAY 236 just at the outset just place certain facts on record? CHAIRPERSON: I a m s o r r y. I a m s o r r y. I f y o u d o n o t m i n d if you move the mask a bit, I think I will hear better but if there is a problem you can just raise your voice. ADV DORFLING: I will try and just raise my voice. C H A I R P E R S O N : Ye s . ADV DORFLING: Is that suitable? Could you hear me Mr Chairman? CHAIRPERSON: Ja. Ja. 10 ADV DORFLING: Thank you. Chair could I just raise one or two matters that concerns us and that we had some d i s c o m f o r t o n t h e s i d e o f M r N a i r. W e d i d r e c e i v e t h e n o t i c e for today’s hearing on the 10 July in the same way as Mr M t i . M r N a i r i s h e r e , w e a r e r e a d y, w e p r e p a r e d . M r N a i r i s happy – was happy to give his evidence. morning informed that two further We were this statements might be f o r t h c o m i n g t h a t o f M r B e j o o a n d t h a t o f M r Va n d e r M e r w e . We were also subsequently informed that there is a potential further and third statement from Mr Le Roux that 20 might be forthcoming. Mr Le Roux deposed to a first statement on the 28 January 2019. the 31 January 2019. He gave evidence on We d i d n o t r e c e i v e a R u l e 3 . 3 N o t i c e forewarning Mr Nair of that and alerting him to the rights that he have in terms of Rule 3 of the Commission which caused some prejudice. It is water under the bridge. Page 10 of 15 We 21 JULY 2020 – DAY 236 need to deal with what we have and we are more than willing to cooperate with the commission. The discomfort we have Chair is the fact that we are being confronted as we go along with new and further facts that needs to be dealt with. It is not a fair process for an implicated person to be confronted with evidence preparing himself to respond and then be confronted with further evidence. We want to do and we propose that it be done in one go. e v e r y t h i n g g e t s p r e s e n t e d t o M r N a i r. 10 That That he deals with it s e n s i b l y, c o n s i d e r i t a l l a n d m a k e h i s e l e c t i o n o n t h e w a y forward. So I would urge Mr Chair to appeal to my learned friend Mr Notshe leading the evidence to ensure that we have the body of evidence that they want to present as a g r e e d b y n e x t w e e k F r i d a y t h a t w o u l d b e M r B e j o o , M r Va n der Merwe and if potentially the evidence of Mr Le Roux a f u r t h e r a ff i d a v i t o f h i m . We are happy to commit to then making our election and responding to that within fourteen days. Next week Friday would be the 31 July we would then make our election and respond appropriately by the 14 20 August. There may be an application or further applications to cross-examine the further witnesses. There is pending before you Mr Chair an application to cross-examine Mr Le Roux which will be entertained after Mr Le Roux’s input has been obtained and secured and been placed in your possession. The same would then apply to the other further Page 11 of 15 21 JULY 2020 – DAY 236 witnesses if there were such applications to cross-examine them. In the circumstances we are therefore happy to agree to the terms and those conditions of moving forward and we believe that once all that is done the commission would be ready to then look at allocating a specific date to deal with all of these issues and ideally we want to appeal to the leader of evidence and to the commission for us to try and resolve this on a singular day when we can come a n d d e a l w i t h i t a n d b r i n g t h e m a t t e r t o f i n a l i t y. 10 As it pleases. ADV NOTSHE SC: Chair can I just… CHAIRPERSON: No thank you. ADV NOTSHE SC: Can I just deal with just one issue? CHAIRPERSON: Hm. ADV NOTSHE SC: record. It is not in response it is – just on The – Mr Bejoo has not tested positive for Covid but he has self-quarantined. CHAIRPERSON: Hm. ADV NOTSHE SC: 20 And he has given – I am just – I have just been shown a note from him saying that he expects to be out of it by end of this week. So I just – I gave incorrect i n f o r m a t i o n t o s a y. C H A I R P E R S O N : Ye s . ADV NOTSHE SC: He has tested positive. C H A I R P E R S O N : Ye s . Page 12 of 15 21 JULY 2020 – DAY 236 ADV NOTSHE SC: He is self-quarantined. CHAIRPERSON: Okay alright. So the – we are not going to proceed with the evidence of Mr Nair then today on the basis that a ff i d a v i t s another that are date still will to be be arranged exchanged once all the between the commission’s legal team and Mr Nair ’s legal team have been exchanged. And obviously I will get to know once that point has been reached and then I will also at that point deal with the application for Leave to Cross-examine or 10 applications for Leave to Cross-examine if another one will be forthcoming. And then after that a date will then be arranged and it – the aim will be to have all of these matters – all of the issues dealt with on the same day and finalised. So no thank you very much I think I would just say I appreciate that there has been a lot of cooperation between the commission’s legal team and both teams one representing Mr Mti and one representing Mr Nair this morning for the agreement to be reached. So we will adjourn then on that basis. 20 As for tomorrow Mr Notshe what is the position with regard to Mr Gillingham have they indicated what their position is? ADV NOTSHE SC: Still the – the position is that the Notice of Set down was sent to Mr Gillingham. representative at this stage. He has no legal It was sent to him to an email Page 13 of 15 21 JULY 2020 – DAY 236 that had been used to communicate with him. response from the email. He was – There is no they tried to communicate with him by cell phone. There is no response. An SMS was sent to the cell phone but both the cell phone and the emails are the emails he had been using and the cell phone he has been using but there is no response so f a r. So we are not certain what the position is. But the matter is set down for tomorrow CHAIRPERSON: Ja. 10 ADV NOTSHE SC: For him and we are not certain whether he – what the position is. CHAIRPERSON: Ja. ADV NOTSHE SC: But the – his bundles are ready and we will also indicate electronically to the email where he can access the bundles so that if he comes, he has got the bundles available. C H A I R P E R S O N : Ye s . ADV NOTSHE SC: But we are not certain whether – what the position is. 20 C H A I R P E R S O N : Ye s . ADV NOTSHE SC: But as we stand the date of the hearing h a s n o c h a n g e s f o r t o m o r r o w. CHAIRPERSON: Ye s o k a y a l r i g h t . The hearing of the evidence of Mr Nair and the evidence of Mr Mti is adjourned sine die and another date – other dates will be arranged. Page 14 of 15 21 JULY 2020 – DAY 236 We adjourn. A D V N O T S H E S C : T h a n k y o u C h a i r. REGISTRAR: All rise. 10 Page 15 of 15