Pretoria – Advocate Annelene van den Heever and the chairperson of the Madlanga Commission of Inquiry into Alleged Criminality, Political Interference and Corruption in the Criminal Justice System, Mbuyiseli Madlanga went into a heated exchange of words during the appearance of businessman Vusimuzi ‘Cat’ Matlala before the commission, with the defence strongly leaning on the protection of the constitution to be treated as innocent until proven guilty.
While there were a couple of episodes, one of the most noticeable ones was how Matlala’s plea deal had crumbled not to bar him to respond to the commission’s question as initially opposed.
Madlanga insisted that the plea deal crumbled and would not be a material factor, but Van den Heever chose to peruse the contents of that deal first. 
“I cannot at this point, in confidence, say to the commission, and I won’t permit my client to deal with those until such time as I know what they have negotiated with him and what they asked him,” she said.
It went into an exchange of word words between the defence and the commission, first Madlanga and Van den Heever.
“Let’s address our minds to those issues about which there is no question regarding them being heard by this commission. That is what my focus is on and it’s on that basis that I say to you, I do not understand your point about the plea deal and its relevance to my question. I hope you get me now,” Madlanga said.
Van den Heever responded briefly saying, “I can only say to you we’ve made common cause on the issue itself. But I can only tell you as an officer of the court which of those…,” before Madlanga interjected.
Mandlanga: “No, no, no, no, no, no, I will not give you time when you seem not to understand me,” Madlanga stated. “I am saying I’m not interested in the nitty-gritty of what falls under the section 35 basket. I’m not interested in that nitty-gritty.
“I’m looking at the broader question of, on those issues on which there is no question whatsoever, which can be dealt with by this commission and you’ve agreed that there are. On those questions, why can those questions be heard before the criminal process has been finalized?
“Whether even accepting as you argue that there are some issues coming out of the plea deal which fall under the set section 35 basket. Even accepting that, you have said there are some which do not fall under that basket. And my focus is only on those aspects that do not fall under that basket. So clearly what you’ve just said about the plea deal is irrelevant to my question.”
Van den Heever: “It’s with the greatest of respect, it’s not irrelevant, chairperson, because I cannot at this point in all, as an officer of the court, distinguish between what we can answer and what we can’t answer. We can only say to you the only things we can…”
Madlanga: “You will never understand me. Please go on to your next point.”
Van den Heever: “I do understand quite clearly. The only issue that my client can answer, chairperson, at this point that we say that we form common cause on is who he doesn’t know on the list of the 10.6. The rest of the issues if I may please please the rest of the issues I cannot say to you I am prepared to answer this because I don’t know if I can.”
Madlanga: “I have not asked you that. You are trying to answer a question which I’ve not asked you. I’ve not asked you that question. I have simply not asked you that question. I am asking you a general question. It has nothing to do with specifics and that general question is on those issues on which there is no question whatsoever.
“Those issues, I will accept for a moment for purposes of this debate that there are plea deal issues that fall under the section 35 basket and which therefore will not apply to my general question. So I’m asking you this general question again and it is this. On those issues whether today, tomorrow or by the end of this year, there can never ever be a question about them falling under the section 35 basket. On those issues and again I repeat this is a general question. On those issues, what would be the basis of us not continuing with those prior to the finalization of the criminal process? What would the basis of not doing so be?”
Van den Heever: “The only basis would be that the evidence will then be presented piecemeal. I’ve said to you, chairperson, and I stand by the only things that he can say to you at this point, I don’t know A, B, C, D and E. The rest of the issues we cannot deal with. And I with the greatest of respect do not think it would be in your interest for him to sit here and say I don’t know this person, I don’t know this person and I don’t know this person.
“That’s the only issue that we can form common cause on that he can at this point answer. We are trying to come to the commission and answer what we can. The problem is and I’m sorry to repeat myself, I can only do so if I know what he can answer is shown to me in black and white. I am trying to ensure that my client comes to this commission and gives evidence to you that is to your benefit, I e. the work of the commission.
“And not for him to be to answer things that we as legal officers and you’ve been in our position before, you can never allow a client to go on oath if you as the lawyer are not sure what he said there is right. I will not perform my duty as an officer of the court if I allow that. And for that reason right now I can claim privilege clearly on certain issues. I can say this is my section 35 issue. The others I say to you I can’t at this stage because I don’t know what’s going on in the background. So it might even be once I’ve got the documents that I think is necessary for me to decide that we can move on that. But right now we can’t. And I respectfully submitted based on the remainder of the issues that I that we’ve put here that um this commission should allow him the opportunity to finish the trial. And more so I get…”
Madlanga: “Again please tell me when you are done responding to my question.”
Van den Heever: “And the last thing is I think the thing that concerns me the most is and we’ve taken the liberty of sharing a privileged document with you pertaining to the opinion. um the one
Madlanga: “I think that’s something else then. Can I come in?”
Van den Heever: “For me personally is very concerning at this point in time.”
Madlanga: “When you referred to a piecemeal hearing, um this is just for clarity, does that mean you are going back on uh the earlier acceptance of what I posited to you which was is it something that can be done for this commission to entertain proceedings that relate to issues that have nothing to do with section 35 and the other understood you to be saying yes. But now towards the end of your submissions, you said uh I don’t know um I’m paraphrasing. I’m not sure of the exact words you used. But you said something like uh it wouldn’t be desirable to have a piecemeal hearing, something like that.”
Van den Heever: “Yes.”
Madlanga: “Is that going back on what you said earlier which was to agree with what I posited to you?”
Van den Heever: “Yes. As I said and and the reason why I say piecemeal is all that will happen at the end of the day uh chairperson is he will sit here and say I confirm I don’t know these people and that is literally all we can do at this point. That is the only part of the regulation 10.6 that we are at idem with each other. I say nothing prevents him from going under oath and say I don’t know person A, B, C, D, E and F and sit back. The rest of the issues again I want to emphasize are that we want to cooperate. We’ve put it in our paper. But give us an opportunity to ensure that what we come to the commission with is truthful, it’s based on facts.”
Madlanga: “Another thing which arises from what you you said in the context of the the plea deal and if I understood you correctly, you said this in the context of dealing with why a statement was not prepared and again if I understood you correctly, you made the point that um you or your client had to wait until that plea deal process had been finalized so as to know whatever it is that related to the facts eventually. Here’s a difficulty I have. um Surely facts cannot change. Facts are facts. And I do not quite get it why Mr. Matlala could not have made his statement. He knows what the facts are regardless of what the outcome of the plea deal uh were to be. He knew the facts and therefore from where I’m sitting subject to your response, he could have said these are the facts and here are my responses to the notices that I have received.”
