CHAIRMAN of State Capture Commission Deputy Chief Justice Raymond Zondo was left squirming in his seat when it emerged on Monday, that the former State Security Agency (SSA) head Arthur Fraser had not been notified that he would be implicated in damning submissions by his former senior colleagues, Mzuvukile Maqetuka, Mo Shaik and Gibson Njenje.
Fraser wasn’t the first of course, many before him have been violated in this way. The deliberate “bungle” was one of many which those deemed “villains” in the dominant narrative of state capture have been subjected to. It may well be that they are but the principle of fairness must apply – even those accused of heinous crimes such as mass murder and rape are given the right to give their version of the story.
Representing Fraser, Advocate Muzi Sikhakhane told the Commission that his client was “probably the only implicated person who has been accused of treason in these proceedings. The Chair knows he’s the former DG (director general) of the State Security Agency and he never received, on the 24th or 26th of November last year, 2019, when Mr Njenje came here, he never received any notice…3.3 notice, as it applies now to Mr Maqetuka as well”. Sikhakhane said they want to put this on record given the great deal of evidence that was presented to the Commission which relates to “very serious matters”. Maqetuka is former director-general Mzuvukile Maqetuka who is also represented by Sikhakhane.
Sikhakhane said Fraser “reluctantly” came to the Commission and only did so because he was accused of treason. “Ordinarily Mr Fraser would have liked to die with the secrets he’s going to have to disclose to these proceedings” but he would come to the Commission to complete the picture on “this thing called state capture….and secrets of the state”. He said his client would share, reluctantly so, “secrets of presidents, past and present; [secrets] that relates to the judges and the parliamentary…”.
While the notion of hearing state secrets is tantalising, the issue of the Commission’s violation, once more, of its own rules, not to mention the rights of those implicated, seems to have gone unnoticed by establishment media, deliberately so, because Fraser, as I say above, like many others implicated in the Commission and are entitled to be given prior notice of such testimony, happens to be part of that group of people who fall under the “villains” of the dominant narrative of state capture.
Sikhakhane said the Commission’s “Pretorius” accepted that Fraser was not served with the notice. Furthermore, he said, an affidavit by Patrick Mlambo read in part: “I was never asked to obtain Mr Fraser’s [contact] number in relation to the 3.3”. Furthermore, the advocate said that the secretary of the Commission also accepted that Fraser had not been served with notice of allegations against him – allegations which Sikhakhane said were treason.
The Commission’s Rule 3.3 notice stipulates that the Commission’s legal team must notify someone “within a reasonable time before a witness gives evidence who may be implicated by a witness”. The person affected will then have an opportunity to apply to cross-examine the witness.
It further states that ‘upon receipt’ of a notice and statement from the commission implicating one, the implicated party has 14 days from the date of the notice, to file an application to testify, cross-examine a witness and/or call witnesses.
There are many implicated people who were not given these notices and I dare say they were hand picked by the backroom of the Commission depending on which side of the ANC factional battles they fall or which narrative and agenda they advance.
It just so happens that former Minister of Environmental Affairs Nomvula Mokonyane was next to testify at the Commission. She too was never issued with such a notice at the instance of the self-confessed racist and corrupt Angelo Agrizzi’s initial testimony. A formal complaint in this regard was filed with Zondo, particularly on procedural fairness, potential prejudice and appropriateness of the decision of the Commission not to comply with its own rules and regulations.
The list of people violated in various ways by the Commission including what, on the face of it, could be inaccurately construed as inefficiency, is long. People like Duduzane Zuma and Kevin Wakeford, for example, have had to come to the Commission only to find a “mix-up” with dates. In the case of Wakeford for example, the State Capture Commission’s Twitter account had posted a notification of his cross examination of Aggrizzi for one day only for the same commission to give him a different date. He then arrived only to be told the dates were wrong. As usual, they were sent away and dates rescheduled for months later. Wakeford was meant to cross-examine Agrizzi in early October 2019 and is yet to have his side heard.
The State Capture Commission, an important process, which should be about exposing corruption and holding those responsible to account, has been allowed to be a platform for personal and political agendas and revenge attacks.
Writing in his blog AnchoredinLaw on the role of commissions, Advocate Vuyani Ngalwana says: “Because the ultimate aim of Commissions of Inquiry is a search for the truth, witnesses often meet with evidence leaders privately, before giving evidence in the open, so that evidence leaders can assess the evidence, test it against facts and other evidence already in their possession, and have it reduced to writing. There should be no room for surprises, whether on the part of evidence leaders or on the part of witnesses.
“During the Marikana Commission, for example, the evidence leaders interviewed the police witnesses they wanted to interview before those witnesses gave their evidence in open session. On that approach, nothing that the witness says in evidence can come as a surprise, unless the witness changes his or her evidence while giving oral evidence at the hearing.
“It is thus unhelpful to the cause of a Commission of Inquiry for evidence leaders to behave like a prosecuting team in a criminal trial. Evidence leaders have no witnesses of their own. They should thus have no “version” to put to witnesses for “cross examination” purposes.” Here’s the full report http://www.anchoredinlaw.net/2019/01/22/commissions-of-inquiry/
Deputy Chief Justice Raymond Zondo sits at the front desk of this commission, giving witnesses all the patience and fairness required to obtain the truth, but the backroom is mired in a sinister factional political agenda.