Testimonies from two key witnesses – former Public Enterprises Minister, Barbara Hogan and former finance minister, Pravin Gordhan – have been postponed till next month.
This is because their statements have landed with the Commission too late to give notice to implicated parties, including former president Jacob Zuma.
Both witnesses held Cabinet positions during the tumultuous Zuma era. Hogan was fired weeks after former ANC MP, Vytjie Mentor was allegedly offered her job by one of the Gupta brothers.
The inquiry’s advocate Thandi Norman said Hogan’s statement was only obtained on Monday while the team currently only have a draft statement from Gordhan who was initially scheduled to testify on Friday.
Norman said witnesses, in some cases, prepared their statements for the Commission with the assistance of their own legal teams.
This requires the Commission’s lawyers to further examine the content and where possible, acquire corroborative evidence ahead of their testimony before deputy chief justice Raymond Zondo.
But, significantly, the witness statements must be provided to implicated parties at least two weeks prior to their testimony.
This is so implicated parties are able, should they wish to, to put up a version of their own, apply to cross-examine a witness and or challenge the incriminating evidence.
In the case of these two high profile witnesses, it was impossible for the Commission’s legal team to adhere to the rules in fairness to them and their rights.
Norman said the application was also brought to ensure that implicated parties were not prejudiced as a result of testimony being heard before they have had an opportunity to consider their response to the allegations.
Justice Zondo granted the postponements and Hogan will now testify on November 12 and Gordhan, provisionally, on November 15.
Hogan, fired by Zuma in 2010, was present during Wednesday morning’s application. The reason for the postponement request involving her testimony was because the Commission’s team only received her final statement on Monday. This document, the Commission was told, was an expanded version of her initial statement and now ran into 300-pages including annexures.
Zuma’s lawyer, Daniel Mantsha, did not oppose the applications but registered several concerns and effectively told Justice Zondo that he didn’t buy the legal team’s argument of “fairness” as part of the reason for the postponement.
“The reasons presented today for the postponement is, in short, that she gave them a statement on Monday and therefore, implicated parties, like ourselves, won’t have enough time to elect to respond.”
Mantsha said they were given a copy of Hogan’s initial statement as far back as August 24 and were told she would testify on September 12.
He claimed that no proper change of plan was subsequently communicated – the Commission’s advocate Norman conceded that this could have been done better.
“We have reacted to that notice (served on implicated parties), sent letters asking for further particulars. Those questions were never answered,” Mantsha said.
He said the Commission’s legal team did not hint at a change of plan when it communicated about Hogan’s scheduled appearance on Monday and neither was Zuma’s team informed of Hogan’s extended new statement, nor were they provided with a copy thereof.
What stopped the Commission on Monday from circulating the new statement? he asked.
Norman told the Commission there was nothing untoward about the application for the postponement in Hogan’s case.
And, she said that Zuma has yet to put up a version about the former minister’s initial statement and has not demonstrated prejudice suffered as a result.
Justice Zondo granted the postponement but said he understood Mantsha’s concerns about why Zuma had not been given a copy of Hogan’s latest statement as yet.
In handing down his ruling, Zondo said implicated persons must know in advance what the allegations against them are so they can attend and also, so they can furnish the Commission with their version to the incriminating testimony.
This, Zondo says, allows the Commission’s team to investigate further and consider both the version of the witness and the implicated party.
The timeframe within which Hogan and Gordhan’s statements came before the Commission – in the case of Gordhan, only a draft – did not allow for adequate time for notice to the implicated parties to respond.
“The Commission is committed to ensuring implicated parties are dealt with fairly and have a fair opportunity to put their version before the Commission and to explain their conduct when they may have acted in an unacceptable manner.
This is important because it would ensure the final findings and recommendations of the Commission are findings that deserve credibility,” Zondo said. DM
*The Commission will resume with Hogan’s testimony on November 12.