Vusimuzi “Cat” Matlala has threatened to approach the courts to halt his testimony before the Madlanga Commission after his senior counsel, Annalise van den Heever, fell ill and could not attend Monday’s proceedings.
Matlala told the commission that he was not prepared to be cross-examined without Van der Heever, his lead counsel.
He also argued he would need an extra day to prepare a replying affidavit to the commission’s questions and heads of arguments.
His junior counsel, Fatima Missi, asked the commission to postpone Matlala’s testimony until Tuesday, 25 August, to allow her legal team to submit a replying affidavit and heads of argument.
“The position he has taken is that he feels that it is unfair that the commission is in a position where his lead counsel is not here. Obviously, not of her own doing but because of an illness that became very sudden in the manner that it has attacked her,” Missi said.
She said that as a result, the legal team had not prepared heads of argument and that Matlala believed his junior counsel were not sufficiently prepared to represent him.
“His instruction is that if the commission is not willing to at least grant us this afternoon to ensure that we have those documents before you and that we have our heads put together properly, the alternative is that he has no option but to instruct us to bring an application interdicting the proceedings of his hearing pending the review of the decision for us not to get a stand-down until tomorrow,” Missi said.
She said the urgent court application would temporarily halt the proceedings while Matlala sought to review the commission’s decision to proceed with his testimony.
“The instructions are that our application on an urgent basis would interdict the proceedings of the hearing or him giving his testimony, pending the reviewing of the ruling that you would have made, which is that we should proceed with the hearing of this matter,” she said.
Missi said Matlala believed it was unfair to require him to proceed without Van der Heever and heads of argument.
“He is of the view that it is unfair that he has been placed in this position where he has to proceed without Ms Van de Heever, who is his lead counsel and without heads of arguments before you, which he believes then implies we are not properly prepared and that we are being strong-armed to proceed,” she said.
Missi said if the commission stood down the matter for the day, the legal team would be able to submit the required documents and proceed with Matlala’s testimony the following day.
Commission chairperson Mbuyiseli Madlanga said that although Matlala’s lawyers might not be ready to submit heads of argument, the commission was prepared to proceed without the documents.
“Written submissions, yes, they do assist legal representatives but in the main, written submissions are prepared for the assistance of the decision-maker, not so much the arguer,” Madlanga said.
Missi said Matlala was uncomfortable proceeding without Van der Heever and only with junior counsel who had not prepared heads of argument.
“He is not comfortable proceeding, which is why he has intimated that should the ruling not be changed to allow us to stand down until tomorrow, he is of the view that he is being treated unfairly and would rather approach the courts to have that changed,” she said.
Missi said Matlala would not be prepared to proceed without a one-day postponement and was prepared to go to court.
She said the legal team had also been unable to consult Matlala adequately because of delays at the correctional facility. She said they had had only a brief opportunity to speak to him on Monday morning, which delayed the preparation of their replying affidavit.
Perhaps with the lead counsel present, Missi said, “we would have a better argument so as to say and maybe create a way for us to argue on a legal basis”.
Missi said the legal team had foreseen the possibility that the commission would not grant the postponement.
“If you choose to proceed without excusing us and thereby Mr Matlala, I therefore would ask to stand down because of the implications on him that would affect us — for one, walking out and who gets to walk out, and, for instance, if counsel is removed from the brief, what are his options?” she said.
Missi said Matlala could decide to leave with his lawyers because he felt he was being treated unfairly and was not being given an opportunity to be heard the following morning.
Evidence leader Adila Hassim said she sympathised with Missi, who had been placed in the position of lead counsel but that did not absolve her of the responsibility to proceed in Van der Heever’s absence.
“They were aware that Ms Van der Heever would not be available today. This could have been brought to us much sooner,” Hassim said.
She said the legal team’s inability to consult Matlala before the hearing was not grounds to delay the proceedings.
Hassim said Khoza, an area commissioner in the Department of Correctional Services, had disputed claims that the lawyers experienced delays in consulting Matlala.
She read a response from Khoza in which he denied that the legal team had faced difficulties consulting Matlala while he was in detention.
“The facts provided are not true. I’m not even aware of the challenges advanced to the commission. They consulted for three days and we are prepared to make concessions any time because we understand the importance of the commission,” Khoza said.
“I checked with the head of the centre, Mr Nxebengu, on all of these challenges. He also denied having created any disadvantages to them,” he said.
Hassim said the application for a postponement should be dismissed and that the cross-examination of Matlala should proceed.
“Having considered everything that has been presented to the commission, my decision is to go ahead to hear Mr Matlala’s application,” Madlanga said.