evidence leader

It is undisputed that on the relevant day Mr Carrim was at a shopping complex in Durbanville, which the Commission's Evidence Leader bases his case on.

“it is agreed that at the time, on the day, Mr Carrim was at a shopping complex in Durbanville”

Any directive regarding Mr Carrim's medical examination must be preceded by the medical examination of Mr Carrim by his own treating doctors; the medical evidence from Mr Carrim's doctor is unchallenged on its clinical observations.

“that report itself emphasizes the role to be played by Mr Carrim's own treating doctors before any such directive can be given that he is subject to the medical examination of another, and you can find that at Annexure MT1, at paragraphs 18 to 19 and it is also referred to in the Evidence Leader's submissions at paragraph 47. So the very point is to say that the medical evidence of Mr Carrim's doctor is unchallenged directly.”

There were two disclosures of documents; the first from A1 to A27 was disclosed at court but not to the Evidence Leader; a second disclosure included further documents up to A36, which were sent thereafter.

“We had two disclosures. The first one from A1 to A27, not to the Evidence Leader, but when we were disclosing at court. And then we had a second disclosure... when I was looking into it, I see it is only up to A27 when there is an A36. So that is when I sent all the documents last night”

The Ad Hoc Committee relied on investigative material compiled by the police and documents from witnesses' statements and whistleblowers to conduct its work.

“the committee relied upon the investigative material compiled by the police, as well as a document compiled by the witnesses' statements submitted by Evidence Leader and whistleblowers.”

There was a correction in the record that Samuel Mashaba received the message from Tumelo Nku at 00:25:19 on 21 July 2021, based on evidence from the Evidence Leader.

“The correct correction was that Mashaba received at that time 00:25:19... On 21-07-09, Samuel Mashaba received from Tumelo Nku a location through Telegram... because of the Evidence Leader... we need to correct that.”

Lt-Col Duma received intelligence by telephone on 21 June from handled sources, took caution to protect the information and its origin due to risk of harm to sources and previous deaths linked to insider revelations.

“the proper information was received on the 21st of June telephonically... I told you and the evidence leader about the risks and the danger that comes with people who provide information... I highlighted to you as to why I had written that paragraph like that and the evidence leader agreed. We all agreed on protecting the original list of information as it may have repercussions when we disclose our source of information.”

The mere approach by Mr Mogotsi to the Evidence Leader cannot be a ground for recusal application nor a basis to anticipate bias from the Evidence Leader.

“if the mere approach on its own is what the recusal is about, I will have to concede, in isolation it is not a ground to bring a recusal application, neither is it a ground to anticipate any form of biasness from the Evidence Leader”

There is no basis to have the Evidence Leader recused specifically regarding Mr Mogotsi if only the isolated issue is that Mr Mogotsi approached the Evidence Leader.

“if that aspect is taken in isolation and the only issue is that Mr Mogotsi approached the Evidence Leader, then it is the correct position there is no basis to have the Evidence Leader recused specifically with regards to Mr Mogotsi.”

Mr Mogotsi approached the Evidence Leader bona fide hoping to assist with information that can help the Commission.

“When he approached the Evidence Leader, it was done bona fide in the hope that he has information that can assist the Evidence Leader.”

Mr Mogotsi made a call to the Evidence Leader asking how to protect him and stated a fear that someone named Sana might want to 'take him down'.

“there is a question that come from Mr Mogotsi that says, how do you protect me? The next questions say, this guy, I believe that Sana maybe wants to take me down”

During the phone call between Mr Mogotsi and the Evidence Leader, additional information was discussed in the form of proof of payment and bank statements, which the Evidence Leader later obtained.

“during this phone call, there was a discussion about additional information that the Evidence Leader sought, which was in the form of proof of payment and bank statements. And then he then says in his affidavit that he became aware on that 10th of March that the Evidence Leader has gotten hold of these proof of payments and the bank statements”

Mr Mogotsi is the person who initiated contact with the Evidence Leader and the Evidence Leader entertained his offer of information.

“Mr Mogotsi is the one who reached out. And according to these records, indeed that is the case. Now, when Mr Mogotsi reach out, the Evidence Leader also entertains him”

There was ongoing interaction between the Evidence Leader and Mr Mogotsi, which strained their relationship even before a recusal application.

“there has been interactions between the evidence, Chair, and Mr Mogotsi, which have strained whatever relation that they might have had. And to demonstrate that even prior to the recusal application”

The Evidence Leader labeled Mr Mogotsi a liar when he gave testimony but still listened to his information, requiring corroboration due to Mr Mogotsi's reputation.

“when Mr Mogotsi was giving testimony, the Evidence Leader labelled him a liar. Now, you have this person who is a liar, and he comes to you and he says he has information, and you take the word of a liar and you entertain him and your unwit that information”

Mr Mogotsi and the Evidence Leader engaged in numerous phone calls, messages, missed calls, and emojis over two days before confirming an appointment to meet.

“there is numerous phone calls, there is messages, there is missed calls, there is emojis that come for a period of two days. And the appointment is finally confirmed on the second day at 16:13”

There is a factual dispute about the content of a phone call on 9 March 2026 between the Evidence Leader and Mr Mogotsi, with one party saying certain things were done, the other denying.

“there is a factual dispute herein one party says I did, and the other says I did not ... nobody knows the contents of the phone calls and what was discussed between the Evidence Leader and Mr Mogotsi”

The Evidence Leader has no detailed recollection of the 9 March call and is not denying it, distinguishing this from a denial per se.

“The Evidence Leader says that he has got no detailed recollection of what was discussed ... It is not a denial per se”

Mr Mogotsi approached the Evidence Leader and gave evidence relating to his interactions with Mr Carrim, which was not hidden and was discussed openly.

“Mr Mogotsi had approached the Evidence Leader and had given them evidence relating to his interactions with Mr Carrim”

Mr Mogotsi alleges that the Evidence Leader encouraged him to produce damaging information against Suleiman and offered help, believing Suleiman was lying and had implicated Mr Mogotsi wrongly.

“Mr Mogotsi says that: “The Evidence Leader says that get many thing against Suleiman and I will help you. He further stated that Suleiman had implicated me and that I should find a way to defend myself. He expressed his belief that Suleiman was lying, that Suleiman had thrown me under the bus and that he wanted me to do the same to Suleiman.””

Mr Mogotsi's WhatsApp and telephone calls with the evidence leader caused him grave concern regarding the evidence leader's impartiality.

“the content of the conversations caused him grave concern regarding the evidence leader's impartiality.”

Regarding the 9 March call, the evidence leader states he does not have a detailed recollection of what was discussed but does deny encouraging Mr Mogotsi to give false evidence against Mr Carrim and categorically denies this.

“On page 82, at paragraph 17, this is what he says: “I have no detailed recollection of what was discussed.” ...On 84, paragraph 103, he says: “I would never have encouraged Mr Mogotsi to give false evidence against Mr Carrim. I categorically deny.””

The evidence leader clarifies that he does not have a detailed recollection of the 9 March call, meaning he cannot recall specifics of what was discussed that day.

“the evidence leader says in paragraph 17 that he does not have a detailed recollection. Meaning that he cannot recall specifics regarding the contents of what was discussed on that day.”

Mr Mogotsi called the evidence leader and the evidence leader suggested that based on the evidence given by Mr Suleiman, he threw Mr Mogotsi under the bus and that Mr Suleiman was lying.

“The evidence leader asked him to get anything against Suleiman and he will help. And that Mr Suleiman had implicated him and that he should find a way to defend himself. And further that Mr Suleiman was lying.”

Mr Mogotsi accused the evidence leader of suggesting improper action and fabricating evidence against him.

“Mr Mogotsi that he should do something improper, he says, that I could never ever do.”

The applicant alleges that the evidence leader failed to investigate issues related to Section 252(A) operations, informant matters, and procurement irregularities, focusing too much on specific individuals such as Mr Suleiman and overlooking other evidence, including that about purchases of properties in the names of private individuals.

“the applicant makes a reference to credible information that he had made available to the evidence leader and leads thereto. And his take is that these issues, which he sees as important issues, have not been given sufficient investigative attention. And what is happening is that the interest has been directed towards specific individuals [Suleiman]. And further, there is also evidence that came to the Commission regarding the purchase of certain properties in the name of private individuals, and that has also been overlooked.”

The affidavit submitted by the attorney for the Commission lacks locus standi and should not be considered valuable or beneficial as it refers to private communications between Mr Mogotsi and the evidence leader, which are matters for the evidence leader to answer, not the attorney.

“I am inviting the Commission to find that when it comes to the affidavit that was deposed to by the attorney for the Commission, that the Commission finds that that affidavit does not enjoy locus standi. The issues that are contained in that affidavit and the comments cannot be of any value or any benefit because it is comments that they know nothing about. It is personal communication between Mr Mogotsi and the evidence leader, and it is issues that the evidence leader should be answering and not the attorney.”

There was communication between Mr Mogotsi and the evidence leader about Mr Carrim, involving discussions to defend Mr Mogotsi and possibly discredit Mr Carrim.

“there was communication between Mr Mogotsi and the evidence leader. And during those conversations, a discussion came in regard to Mr Carrim... regarding Mr Mogotsi to defend himself and, if the need arises, to throw Mr Carrim under the bus.”

There is a dispute over the contents of phone calls between Mr Mogotsi and the evidence leader, with no record of what was discussed, making it difficult to assess the reasonableness of apprehensions of bias.

“I do not know what was contained in the telephone calls... you would also not be in a position to know what was discussed in those telephone conversations... there is no recorded conversation...”

Evidence leaders assist and facilitate the work of the Commission and lead the presentation of evidence before the Commission but are not decision makers themselves; decisions belong to the Commission.

“What an evidence leader does ... is an evidence leader assists the Commission. He leads, organises, and tests evidence. That function must be performed fairly, but it is not adjudicative. It is an investigative function.”

The allegations made are very serious and go to the heart of ethics, professional ethics, and the integrity of the evidence leader.

“The allegations are so serious . They go to the heart of ethics , professional ethics , and the integrity of the evidence leader”

Mr Mogotsi has not shown that the continued involvement of the evidence leader would cause substantive unfairness in the Commission's work.

“Mr Mogotsi has not shown that .”

Mr Mogotsi frequently missed appointments, disrupting the schedules of the evidence leader and investigators, causing frustration as explained by Mr Chaskalson.

“Mr Mogotsi's missing appointments was continually missing these appointments and disrupting the schedules of the evidence leader and the investigators”

Mr Mogotsi intentionally misled the evidence leader to engineer a postponement of a witness who was giving evidence.

“why would he mislead the evidence leader about a meeting that never took place and say under oath that he did so in order to engineer the postponement of Mr Carrim's testimony”

Adv. Chaskalson SC suggests Mr Mogotsi should take legal advice about the refusal to answer questions based on fear of self-incrimination, which may lead to referral for prosecution under relevant Act provisions.

“it is possibly appropriate for Mr Mogotsi to take some legal advice on this, because certainly the attitude of the Evidence Leader is that subject to any plausible reason for a fear of self-incrimination, the Evidence Leaders would want a refusal to answer questions to be followed by a referral for prosecution under the relevant provisions of the Act.”

The letter containing reasons for not prosecuting was produced by Advocate De Kock from the Office of the NDPP and shared with the Evidence Leader.

“there is the ruling from the Office of the NDPP ... that should be the outcome of the representations and providing reasons why the State is not prosecuting.”

If tenders are known to expire at the end of February, the tender process should start a year earlier, not three months before expiry.

“If you know that a three-year contract is expiring at the end of February 2025 or 2020, you must start the process a year earlier. You cannot start it three months before the contract expires ... The reason I am raising this is you mentioned the three companies that the evidence leader said will be the focus of this stream. They have been favoured because it means their contracts have been extended after their term has expired, and that would apply to the other 22.”

An evidence leader found two additional payments to Medicare from Mr Carrim's company Tasmica Construction that were not disclosed by Mr Carrim.

“the evidence leader identified two additional payments to Medicare from your client, which your client has not disclosed. The payments were in an amount of 1 million on 27 June 2024, and an amount of 1.12 on 7 October 2024. Both payments were made from your client's company, Tasmica Construction.”