Fiery clash as Matlala’s advocate accuses commission of breaking off-the-record deal

A heated clash erupted at the Madlanga Commission on Tuesday as Vusimusi “Cat” Matlala’s lawyer accused evidence leaders of breaking an agreement not to use information her client had shared during private consultations with investigators.

Advocate Annelene van den Heever confronted evidence leader advocate Mahlape Sello over whether discussions between Matlala and commission investigators in March had been agreed to be off the record.

The argument centred on an affidavit by commission investigator Bongani Dlamini, whose notes were used to question Matlala on Monday.

Van den Heever said the information should never have been used, claiming the commission’s evidence leaders had previously agreed to keep the discussions confidential.

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“My client should never have been confronted with what happened off the record, what was agreed by this commission’s evidence leaders was an off-the-record discussion. Under no circumstances do we do that,” Van den Heever said.

Sello said there had never been such an agreement.

She argued that investigators had met Matlala specifically to obtain evidence and that keeping the discussions off the record would have defeated the purpose of the meetings.

“What would be the purpose of holding two-day consultations with Mr Matlala, if we are off the record? Off the record would imply anything that Mr Matlala informs us of, we cannot come present in public. It was clear at all times that we were meeting with Mr Matlala with the purpose of obtaining a statement,” Sello said.

“So, I take issue with the suggestion that there was ever any agreement that our consultations with Mr Matlala would be off the record. It would serve no purpose,” she added.

The dispute followed consultations arranged between Matlala and commission officials in March.

Investigators interviewed Matlala at Kgosi Mampuru II Correctional Centre in Pretoria on 27 March. A planned continuation was disrupted after he was transferred to Ebongweni Correctional Centre in Kokstad.

Sello said the meetings were arranged after police officers identified as Witnesses A, B and C testified about recorded conversations in which Matlala allegedly made corruption allegations about disgraced former police chief Shadrack Sibiya.

She said that Matlala’s legal representatives knew the commission intended to obtain a statement from him.

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But Van den Heever claimed the matter had already been settled in August.

She told the commission that after receiving Dlamini’s affidavit on 23 August, she raised objections with the evidence leaders.

According to Van den Heever, she later spoke to evidence advocate leader Adila Hassim, who allegedly told her that the legal team had agreed the March consultation was off the record.

Van den Heever said she was instructed not to proceed with an application to prevent the evidence from being used.

She said she was prepared to testify under oath about the alleged agreement.

“I’ve never had to do this as counsel, but I will go under oath, and I will open myself for cross-examination if necessary about that meeting. I was not the only person that was there. And I loathe the fact that I am being made out not to state something that’s the truth here. It is the truth,” she said.

Sello pointed to correspondence between the legal teams that she said showed the matter remained unresolved.

Commissioners Sandile Khumalo and Sesi Baloyi also questioned why there was no written confirmation of the alleged agreement.

They asked why Matlala’s lawyers had not clearly objected when a draft affidavit was circulated after the March consultation.

Van den Heever conceded there was no written confirmation but maintained that agreements between lawyers were not always recorded in correspondence.

Commission chairman Mbuyiseli Madlanga ruled that Matlala’s questioning could continue while the dispute was dealt with.

“I think we’ve reached the stage where we should continue with the testimony. But pending the filing of the affidavit that you referred to, which will be indicating what relief you will be seeking and any response that the evidence leaders may have, there’s the issue of how we proceed today. My ruling is that we proceed,” Madlanga said.

He made it clear, however, that the decision was not final.

“What will happen, if in the end the commission accepts that the position is as asserted by Ms van den Heever, then anything, any and everything that relates to the cross-examination of Mr Matlala around Mr Dlamini’s affidavit will be expunged from the record,” he added.

Van den Heever said she would submit affidavits setting out her version of events and what she wanted the commission to do about the disputed evidence.

Tuesday’s confrontation followed a separate ruling on Monday, when Madlanga rejected Matlala’s attempt to prevent the commission from using information linked to his failed plea-and-sentence agreement with the Investigating Directorate Against Corruption.

That ruling is also being challenged by Matlala’s legal team.

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