The Commission's case challenges the medical evidence on the basis that Mr Carrim was at a shopping complex in Durbanville, which contradicts his clinical diagnosis.
“the very attitude of the Commission through the Evidence Leaders is not to say that, oh, this is a benign piece of evidence, the CCTV footage... The entire thesis underlying their opposition to the postponement and why they want to tied down my client to a specific date is to say the fact of these movements, the fact of these payments, the fact that he is not in the hospital all the time bring into doubt the medical diagnosis that the clinician has given him.”
The paragraph 66 on page 23 does not explain why documents and information could not have been provided between 10 March and 13 April 2026.
“there is no explanation to us as the Evidence Leaders or to the questions that have been posed by the Commissioners why these documents and this information could not have been provided between 10 March and 13 April.”
The legal representatives of Mr Carrim and the Evidence Leaders may not, during the hearing of the postponement application, mention Mr Carrim's medical condition, the nature of the treatment, the identity and nature of health professionals attending to Mr Carrim, and the medical facility where he is admitted, as well as the names and addresses of his family members.
“The legal representatives of Mr Carrim and the Evidence Leaders may not, during the hearing of the postponement application, mention Mr Carrim's medical condition, the nature of the treatment is receiving, the identity and nature of practice the health professionals attending to Mr Carrim in respect of the medical condition and the medical facility where he is admitted ... may not ... mention the names and residential and business addresses of Mr Carrim's family members”
The Evidence Leaders are not opposing the postponement application itself but oppose granting a postponement without requiring an independent medical examination, based on the history of postponements where the length of Mr Carrim's incapacity has grown each time.
“the heart of our opposition as Evidence Leaders is that the Commission should not grant a postponement without requiring an independent medical examination ... we have had a history of postponements where the length of time that we are told that Mr Carrim will be incapacitated has varied and grown each time”
The Evidence Leaders oppose granting a postponement without requiring an independent medical examination due to a history of varied and growing lengths of incapacity claims by Mr Carrim.
“the heart of our opposition as Evidence Leaders is that the Commission should not grant a postponement without requiring an independent medical examination. That is the heart of the opposition by the Evidence Leaders to a postponement and the reason for that is because we have had a history of postponements where the length of time that we are told that Mr Carrim will be incapacitated has varied and grown each time.”
There is a legal ruling prohibiting mention or publication of Mr Carrim's medical condition, treatment, health professionals involved, or the identity of his family members' names and addresses during the hearing of the postponement application.
“The legal representatives of Mr Carrim and the Evidence Leaders may not, during the hearing of the postponement application, mention Mr Carrim's medical condition, the nature of the treatment he is receiving, the identity and nature of practice the health professionals attending to Mr Carrim in respect of the medical condition and the medical facility where he is admitted. Publicaton or dissemination in any format of that information is prohibited. The legal representatives of Mr Carrim and the Evidence Leaders may not during the hearing of the postponement application mention the names and residential and business addresses of Mr Carrim's family members.”
All postponements until 15 July were granted on the understanding that Mr Carrim was hospitalized and his movements were restricted.
“all of the postponements were granted, we were permitted on the understanding by the Commission and the Evidence Leaders that Mr Carrim was hospitalized and that his movement was restricted”
On 14 July whistleblower reports questioned Mr Carrim's movements, leading to the acquisition of CCTV footage that corroborated the whistleblowers' accounts.
“It was only when there were the two whistle blower reports on the 14th of July that the issue of Mr Carrim's movements were put into question. The Evidence Leaders then obtained the CCTV footage to corroborate what we would beentold by the whistle blowers”
Geolocation data from Mr Carrim's cellphone was obtained showing his movements and was shared with his legal representatives on 17 July, prompting further affidavits.
“the Evidence Leaders obtained geolocation data. That is the data of Mr Carrim's cell phone that tracks the movements ... We presented that information to Mr Carrim's legal representatives on the 17th of July. That then prompted two further affidavits”
Mr Carrim was hospitalized and his movements were restricted, with all postponements of proceedings initially permitted on that understanding until the whistleblower reports on 14 July questioned it.
“Mr Carrim was hospitalized and that his movement was restricted”
Geolocation data from Mr Carrim's cellphone was obtained and shared with his legal representatives on 17 July to track his movements.
“The Evidence Leaders obtained geolocation data. That is the data of Mr Carrim's cell phone that tracks the movements of the phone. We know from the first deponent that Mr Carrim keeps his phone with him. We presented that information to Mr Carrim's legal representatives on the 17th of July.”
The Evidence Leaders have not materially responded to questions about the medical examination, including whether it can be voluntary or compulsory and whether there is power to order it.
“the Evidence Leaders who have not responded materially to those questions”
The Evidence Leaders have not responded materially to questions regarding instructions about the medical examination, specifically about whether it can be voluntary or compulsory and the power of the Commission to order it.
“it is actually the Evidence Leaders who have not responded materially to those questions, which my client expressly says through his attorneys will allow us to take a final position on this question of the medical examination, because of course, Chair, if there are insufficient answers to those questions, particularly the question at 10.2 in bold, which is on page 24, statutory authority, it does not matter whether it is voluntary or compelled, if you do not have the power, you do not have the power.”
Mr Carrim is accused by the Evidence Leaders of avoiding accountability by using affidavits and clinicians to support his position and thereby shielding himself from direct questioning.
“In their view, the Evidence Leader's view, Mr Carrim is avoiding accountability at all costs... He is using the deponents of the affidavits and treating clinicians to aid him in order to do so”
The Evidence Leaders have not called the doctor to cross-examine him directly despite his volunteering, instead opting to challenge the doctor's medical views through indirect means like geolocation data and CCTV footage.
“they have not called the doctor to be cross-examined by them, and he has volunteered himself to do so... they want to put up all kinds of geolocation data and CCTV footage to impugn the doctor’s medical views through the back door”
Advocate Baloyi asserts that the Evidence Leaders, as lay people, cannot impugn the medical opinions of the doctor and that such an assertion would be unfair and inaccurate.
“I think it is grossly unfair that you would formulate the position of the Evidence Leader s to be to impugn the medical opinion. They are lay people... I would be shocked if that is what they were doing.”
The Evidence Leaders insist that Mr Carrim be subjected to an assessment by an independent doctor in order to counter the clinical conclusions reached by Mr Carrim's doctor, but this has not yet happened.
“the Evidence Leaders have done is to say Mr Carrim must be subjected to an assessment by an independent doctor... at this stage the point you make has not been reached.”
Mr Carrim is accused by the Evidence Leaders of avoiding accountability by using affidavits and clinicians to support his position rather than directly addressing medical evidence, and the Commission has not cross-examined the doctor who has volunteered to confirm the evidence.
“In their view, the Evidence Leader's view, Mr Carrim is avoiding accountability at all costs... the one thing they have not done is they have not called the doctor to be cross-examined by them, and he has volunteered himself to do so”
The Evidence Leaders do not purport to impugn the medical opinions of the doctor but seek an independent doctor's assessment due to their layperson status.
“They are lay people... They could never pretend to do that... That is different to speaking to the facts alleged by the doctor...”
The Commission insists Mr Carrim should be subjected to assessment by an independent doctor to counter the clinical conclusions of Mr Carrim's doctor.
“the Evidence Leaders have done is to say Mr Carrim must be subjected to an assessment by an independent doctor... that would counter all of the clinical conclusions reached by Mr Carrim's doctor”
There has been shifts in the factual positions regarding Mr Carrim's medical evidence, and the Evidence Leaders are entitled to challenge these shifts.
“there has been a shifting of the goal posts, even by the doctor himself... the Evidence Leaders are perfectly entitled to challenge the doctor on that”
The purpose of providing witnesses with documents in advance is to enable them to familiarize themselves and consider them in the context of their testimony.
“The purpose... of giving the witnesses the documents that evidence leaders intend to rely upon ahead of their appearance, is to enable them to familiarise themselves with their contents and to consider them in the context of their own testimony.”
The whistle-blower's identity, name, and report were always available to the evidence leaders; the issue was how she would appear and maintain her anonymity in the Commission hearings.
“Her identity, her name and her report was always available. It was a question of how are those presented to the Commission.”
Mr Nku explained that the supplementary statement was made as a result of engagement with Evidence Leaders where clarity was sought on his type of operations, and initial questions posed by the Commission.
“In my supplementary statement , my supplementary statement is as a result of the engagement that I had with Evidence Leaders , where clarity was sought into the type of operations that I do . So , that emanates from that . Initially , I was addressing the questions posed by the Commission .”
Mr Nku conceded nothing prevented him from mentioning his work with intelligence agencies in the initial statement; he only elaborated further following engagement with Evidence Leaders.
“I do concede that nothing stopped me . The only reason I elaborate further was on the basis of the engagement I had with Evidence Leaders .”
Mr Nku's supplementary statement was more detailed and given in consultation with the Evidence Leaders and legal team, providing greater clarity about the context and source.
“However, in the supplementary statement, to a greater extent, there was guidance provided because I had engaged with the Evidence Leaders along with the legal team. So I did not know how detailed must the statement be...I thought I was answering questions because there were questions posed on the initial statement.”
Mr Nku was initially unaware how to answer questions in his statement without guidance from the Commission's Evidence Leaders.
“As I said, Adv Mosikili, that when the Commission served me with the questions initially, I had not been given guidance as to how to provide answers. So I did not detail as much as I should have had. It was only upon when there was clarity from the Evidence Leaders as to the fact that I should give as much detail as possible pertaining to my recollection of the event.”
The General does not allege any serial refusal by Evidence Leaders to produce documents; no single document required from Evidence Leaders has been failed to produce.
“the General, even in his statement, does not make such an allegation . There is not a single document that the Evidence Leaders have been required to produce and have failed to produce”
General Senona's complaints largely stem from a belief that he was not served with Rule 3.5 notices, which are notices issued when a person is implicated based on evidence and testimony.
“General Senona's complaints stem largely from a view that we have failed to serve him with a Rule 3 . 5 notices . And these are notices that we issue based on testimony and evidence”
A Regulation 0.6 document, based on evidence and testimony, has been issued instead of Rule 3.5 notices, inviting the person referenced to provide testimony or a contrary position.
“What instead has been issued is a Regulation 0 . 6 , which once again is a document that is generated by Evidence Leaders based on the evidence and testimony before the Commission where we believe”
Advocate Mpofu asserts that Brigadier Nyuswa was made aware of General Senona's opposing version during preparation for his statement, as communicated by the Evidence Leaders, which raises issues of fairness and legal appropriateness.
“when Brigadier Nyuswa was being recognized or preparing for his statement, he was told what the version of General Senona will be on that particular point... it would have been appropriate, legally speaking, for him to be placed in the same position that the Evidence Leaders chose to put Brigadier Nyuswa”
Mr Nku's testimony was scheduled to be postponed to allow sufficient time for his evidence due to its expected length and other scheduling constraints including General Senona's testimony.
“The Evidence Leaders considered the scheduling as well as the fact that Mr Nku's evidence is likely to take more than one day... the Evidence Leaders deemed it fit to reschedule him to next week where sufficient time for his complete testimony can take place... the evidence of General Senona is scheduled to take place tomorrow, and that evidence cannot be moved.”
Mr Nku's evidence was postponed from last week to this week and then further postponed to next week due to scheduling and the potential length of his testimony.
“An application was agreed to by the parties to have Mr Nku's evidence postponed from last week to this week... the Evidence Leaders deemed it fit to reschedule him to next week... We have engaged with Mr Nku's legal representatives and are in the process of agreeing to the dates for next week.”
An information note prepared by Colonel Jacob for consultation with the Evidence Leaders was more detailed than the initial statement and aimed to develop a fuller explanation of his decisions regarding the movement of exhibits.
“I did what I called an information note, which was much more detailed. So with your indulgence, I would like just read out that little paragraph that deals with what …”
The Evidence Leaders must prepare bundles of related documents after General Senona's statement is filed, implying timing pressures if the statement is filed late.
“once a statement is filed, the Evidence Leaders usually have to prepare bundles of documents that relate to the statement ... there is a question of when does it get finalized and we too must get those bundles in time for our preparation as well.”
If Mr Mogotsi has truthful, verifiable, and corroborated information, Evidence Leaders should ask him to provide that information to put it to Mr Carrim for a public hearing response.
“If Mr Mogotsi has information which is the truth and can be verified and corroborated through other means, what is wrong with Evidence Leaders asking Mr Mogotsi to provide that information so that it can be put to Mr Carrim?”
It is Commissioners who decide what happens to implicated people, not the Evidence Leaders.
“It is Commissioners who decide what happens to Mr Mogotsi and other people who are implicated. It is not the people who lead evidence. Their job is to present the evidence to the Commissioners, and the Commissioners decide what happens to all the people who are implicated.”
The role of an evidence leader involves questioning witnesses with an open but enquiring mind to test credibility and seek out inconsistencies, as endorsed by Justice Nugent in the SARS Commission.
“The role of evidence leaders... open but enquiring mind... It is a state of mind that is open to all possibilities and reflects upon whether the truth has been told... It asks questions and seeks out information until they do...”
The witness for the Port Shepstone theft case is not legally represented and was initially reluctant to testify, but the Evidence Leaders insisted on more detailed testimony.
“this was not a witness intended to go in-camera... The witness would have been somewhat prepared to testify as to some facts, but it would have been a very superficial kind of testimony... the Evidence Leaders, drove the witness to disclose as much as possible, and I think to a point of discomfort for the witness.”
Mr Malatji did not seek assistance from the evidence leaders despite it being usual to do so for witnesses needing documents, especially those on suspension.
The evidence leaders exercise discretion in selecting which documents out of a large volume are relevant and will share documents if they become relevant during proceedings.
“Mr Chaskalson said of those, he was going to use only 1300 and something pages...they often use their own discretion with regard to what they consider to be relevant...fairness do dictate...the documents should then be shared if and when that arises.”