ADV Vanden Heever

Mr Matlala's constitutional rights as posited by Ms Vanden Heever are irrelevant to the Commission's enquiry as those rights existed on 7 July when the undertaking was made and do not advance the issue further.

“what the legal position is regarding Mr Matlala's constitutional rights, as posited by my learned friend, is irrelevant for our purposes. She may very well be correct, she may very well be wrong, but it does not advance the issue any further. Those rights existed on the 7th when she made the undertaking, unless she suggests that they have since or very recently been earned.”

Not everything Mr Matlala could say is covered by section 35 constitutional protection, as accepted by Ms Vanden Heever.

“And as I put it to Ms Vanden Heever, it cannot be that everything he could ever say is covered by section 35. Or bears relevance to the section 35 protection. It can never be, and Ms Vanden Heever accepted that.”

Facts should not change according to what happened under a plea deal and the Commission should not be hamstrung by any plea deals Mr Matlala may conclude in criminal trials.

“And facts are facts, and they should not change in accordance with whatever it was that went on under the plea deal. But as Commissioner Baloyi said, that is null and void anyway. In any event. And once again, it depends on whether I understood her correctly, it gets worse, because now it sounds like the Commission shall be hamstrung by any plea deal that Mr Matlala may choose in any criminal trial, whether ongoing or in the future, to conclude. So effectively, if Mr Matlala were to tomorrow face five charges in five different criminal trials, and he considers whether or not to conclude a plea deal in any one of them, then this Commission is hamstrung, unless I completely misunderstood Ms Vanden Heever.”

ADV Vanden Heever denies going back to the issue of the plea deal and claims having experience to demonstrate its importance later.

“I am not going to go back to the issues of the plea deal. I stand, I have got experience in that regard, and I know it is important and at some point in time, I will demonstrate to you what the importance of that is.”

Adv Vanden Heever claims that subsequent to 7 July, there were court proceedings on 13 July and recordings disclosed on 8 July, disputing a claim that nothing happened after 7 July.

“The second thing, my learned friends says that subsequent to the date of the 7th, nothing happened. The affidavits sets out quite clearly what happened subsequent to the 7th. The 13th we were back in court. There is also the issue on the 8th, the recordings were disclosed, and what happened there. So my learned friend's not correct when she says there is nothing.”

Adv Vanden Heever states that before 7 July, they requested recordings and were given 7 or 13 voice files, but claim some were cherry-picked and incomplete recordings requested.

“We wanted, so we asked, we said that there must be certain recordings. We were then given 7, no, 13 voice files. We then said, it is clear somebody went and extracted, like, cherry-picked and given us 7 voice files. We now want the complete recordings from which these were extracted.”

Adv Vanden Heever alleges one recording was not given to them and they were only provided with an unofficial transcript to listen to and verify recordings themselves.

“There is, in fact, a third recording that was not given to us. Then we were handed over, I discussed it with my learner friend, and she made some enquiries. We were given a transcript, an unofficial transcript of the one. So, and these are long. They are over, the one is 6 hours, and the other together is longer than that. So, and the client must sit and listen to it because he needs to ensure himself. So that process was not even concluded.”

ADV Vanden Heever requests the Commission to facilitate weekend access to the client with electronic devices so the client can review evidence files efficiently.

“I am going to ask you and the Commissioners to consider the following. I am going to ask that we be assisted and that an order is made that we get access to the client over weekends with electronic devices, in other words, with the computers, to assist us in dealing with all of these things. It is very difficult if we cannot do that.”

Adv Vanden Heever claims the defense team had consultations before an upcoming trial and had access to disclosed dockets to prepare a plea.

“We have had consultations long before. It is actually a much simpler matter than anybody has made it out to be and that is why, for that, it was easy. We have given the client the dockets that was disclosed. And when we had opportunities, we have discussed with him our defence, our plea, so that was, and we had one or two person-to-person meetings that was allowed by the Head of the unit where he is.”