There are factual inaccuracies in the affidavits of the deponents, but these inaccuracies are fully dealt with considering the pressurized circumstances under which the affidavits were made and do not necessarily impugn the clinical diagnosis involved.
“To the extent that there are inaccuracies on the papers, they are dealt with fully, and the surrounding circumstances around how those inaccuracies arose are fully dealt with ... it is unfortunate to draw any adverse inference by the mere fact of those inaccuracies in circumstances where there is also an attempt to explain how those inaccuracies arose”
The factual movements related to Mr. Carrim's medical condition should not be used in isolation to draw clinical conclusions because such movements may be part of the therapy process and do not necessarily contradict treatment.
“It is not a purely factual inquiry ... the danger in analysing the facts of those movements would potentially lead you to draw an inaccurate clinical conclusion because the fact of those movements is not necessarily antithetical to the treatment he is receiving ... it might form part of the therapy process.”
A confirmatory affidavit from the treating doctor regarding the reply affidavit content was signed or should have been signed, confirming that the medical responses were provided by the doctor and not the lay deponent.
“There has or should have been a signed confirmatory affidavit from the treating doctor in respect of the content of the replying affidavit ... confirmed by the doctor themselves.”
The lay deponent is relying on medical responses confirmed by the treating doctor and is not offering her own medical opinion influenced by the legal team or others.
“It is not just the deponent offering her own opinion or thoughts influenced by the legal team or anybody else ... the medical responses are medical responses from a non-medical person but confirmed by the medical person themselves.”
There is a danger in drawing inappropriate conclusions from factual inaccuracies elevated beyond their factual context, which might incorrectly cast doubt on clinical diagnoses.
“The danger in the exercise that we were just going through ... you must be very careful in what conclusion you draw ... those mere facts are elevated to considerations that impugn, or not even impugn, that open to doubt the clinical diagnosis.”
The clinical diagnosis itself is not impugned by the factual issues but remains accepted.
“Commissioner Baloyi rightfully says that they are not impugning his clinical diagnosis, they are just relying on these factual issues to say there is a problem here ...”
The video footage related to the matter is unnecessary, inappropriate, and does not serve a legitimate purpose since allegations have already been admitted, answered to, and amplified by the client and witnesses on his behalf.
“the video footage is unnecessary today, and more than being unnecessary, it is also not appropriate and does not serve a legitimate purpose”
The video footage is an inappropriate form of evidence because the underlying issue is a medical issue; such footage not being analyzed or responded to by a clinician is inappropriate secondary evidence.
“on its own, not being led through a clinician and not being analysed by a clinician or responded to by a clinician is inappropriate secondary evidence”
Flighting video footage to prove something already undisputed is unnecessary; if the flighting is to disprove the medical condition by being present, the point would be valid.
“I am not convinced by your second point. You see, your second point would make sense if the flighting would be for the purpose of showing that by being there, the medical condition relied on simply does not exist”
The postponement application for Mr Carrim's testimony is effectively unopposed by the Commission because the postponement is now scheduled for a fixed date of 14 August 2026.
“the Commission has itself now conceded that a postponement is appropriate. The Commission has chosen a date of 14 August 2026, and that means the postponement application ... is effectively unopposed”
There is a distinction between opposition to the postponement as such and opposition to whether the postponement should be to a fixed or indefinite date.
“There is disagreement, but it is on the mechanics of the postponement rather than the narrower question”
The Commission's complaint regarding the client's postponement is medically based and therefore secondary evidence like CCTV or geolocation data without clinical analysis is inappropriate.
“...what underlies the Commission's concern and the Commission's complaint regarding my client's postponement is a medical issue ... this geodata information or CCTV footage or whatever it is, on its own, not being led through a clinician and not being analysed by a clinician or responded to by a clinician is inappropriate secondary evidence which is being used to gain say the medical opinion expressed about that exact approach”
ADV PREMHID accepts the history and acknowledges the need to read the transcript to clarify the extent of opposition to an independent medical assessment and the nature of instructions from Mr Carrim.
“No, I accept that and I am not going to try and relitigate that history now. It was on the characterization issue about voluntary or compelled...”
ADV PREMHID asserts that compelled examination by a third-party medical practitioner would have a deleterious effect, but less intrusive means respecting the role of the treating doctor are acceptable.
“the deleterious effect of a compelled imposition of a third party medical practitioner would be for what he is doing, but not to say that that is a total outruling of less intrusive means provided that whatever the less intrusive means are, plays a suitably respectful role of him as the treating doctor”
ADV PREMHID says medical evidence from his client's doctor is unchallenged and supported by legal authorities including the Hyatt case cited.
“the point about unchallenged medical evidence and proceeding in the face of unchallenged medical evidence, and you know I say that our , my client 's doctor 's evidence when properly understood, is unchallenged . That point is made by the same authorities relied on by our learned friends. So for example, at paragraph 16 of the Hyatt case which can be found at pages 6 and 7 of their authority bundles, that point is made .”
ADV PREMHID claims secondary evidence like CCTV footage, geolocation, and other doctor's reports does not challenge the primary medical evidence.
“this secondary evidence, the CCTV footage, the geolocation data, even their own doctor 's report, does not challenge the medical evidence properly in the way that the medical evidence is in front of you .”
ADV PREMHID denies opposing an independent examination but opposed compelled examination.
“I respectfully disagree with you, Chair, in the following two respects. On the last occasion it was not that I had any objection to an independent exam being performed. It was whether or not it could be compelled”
CHAIRPERSON notes ADV PREMHID previously argued they lack legal power to compel an examination under civil procedure rules and never indicated willingness for voluntary examination.
“you strongly argued against it, making the point that we simply do not have the power and you distinguished the fact that we do not have the power by making reference to the power that a high court has in civil proceedings in terms of the rules.”
CHAIRPERSON recalls more than one letter was written to Mr Carrim's attorneys asking him to avail for an independent assessment, initially no response, then vehement opposition from ADV PREMHID.
“More than one letter was written to Mr Carrim 's attorneys requesting him to avail himself for an assessment by an independent doctor. Initially there was no response and was there a response the second time around? I am not sure, but here in open session in this Commission what we got was the vehement argument by you against that as a possibility.”
ADV PREMHID accepts history of opposition but will re-review transcript and may clarify or apologize if wrong about prior positions on compelled vs voluntary assessments.
“I accept that and I am not going to try and relitigate that history now. I think I am going to go and read the transcript because at this stage I am going to respectfully say recollections may vary and then I can come back to you and reply and clarify that as needed because I am, as I say I remember the debate having happened slightly differently and it was on the characterization issue about voluntary or compelled and it did not go beyond specifics about what if it is voluntary then what is the instruction in the way that it was put to me today... If I am wrong about that then obviously I will be wrong and I will apologize to the Commission accordingly, but if I can move on.”
Paragraphs in the affidavit add color and context to why divulging certain information is not simple, and note the inherent risk throughout the proceedings regarding Mr Carrim's ability to provide instructions.
“Paragraph 53.1 which adds some colour, perhaps, as to why something that is described as a simple issue or decision or divulgence is not as simple as it is... the qualification in 66 in respect of what comes above in respect of 65... is itself further qualified regarding Mr Carrim and his ability and what the inherent risk is throughout the proceedings.”
According to affidavits, certain individuals referred to by Chair are not considered to have a greater role in running the businesses involved, and the paragraphs instructing Mr Carrim to give instructions must be considered with ability and capacity in mind.
“Chair views those two other individuals who I am not going to name as having a greater role perhaps in the running of the businesses... even if it is as simple in inverted commas for an instruction to be given by Mr Carrim to those individuals, those two paragraphs need to be borne in mind in respect of the instruction and the ability to give that instruction.”
The Chairperson explained the reason for going out of open session was to avoid divulging information that should not be publicly disclosed and referred Mr. Premhid to read certain paragraphs in-camera to him for questions.
“The reason for going out is that everybody will recall ... I asked Mr Premhid to read certain paragraphs for himself and then I put questions to him ... to avoid divulging the sort of information that I said in my ruling should not be divulged.”
Mr Premhid answered questions referencing specific paragraphs and pages of the affidavit about instructions given by Mr Carrim, explaining that the issue is not simple and involves interactions and risks inherent to Mr Carrim's position.
“I gave, is paginated page 45 paragraph 53.1, which adds some colour ... explaining why something described as a simple issue or decision or divulgence is not as simple as it is ... the instructions that I said I would undertake to give ... Contact was made ... to take instruction on the issue ... Mr Carrim has suffered another medical incident ... no instructions can be obtained by him ...”
A paragraph about the involvement of Mr Carrim's husband in business before 13 April 2026 is incomplete and does not explain the delay in providing documents between 10 March and 13 April.
“paragraph 66 on page 23 ... The first sentence. In fact, let me just read the paragraph. 'Before 13 April 2026, my husband was fully involved in his businesses…' And then she explains what that involvement entailed, but there is no explanation ... why these documents and this information could not have been provided between 10 March and 13 April.”
Mr Carrim's son assumes overall responsibility for overseeing businesses and is a central contact point but does not make strategic business decisions or decisions concerning new business.
“What that paragraph says is that he assumed overall responsibility for overseeing the businesses and ensuring that the operations continue in his absence. He is a central point of contact, attends to matters requiring attention, oversees payments of expenses and continued performance of existing obligations ... 67.3 says he does not make strategic decisions or decisions concerning new business.”
There is no objection to the redaction of the record or the CCTV footage; the point of the evidence on Mr Carrim's movements is not to disprove a psychiatric diagnosis.
“On the question of the redactions ... On the question of the CCTV footage ... What I would like to make clear at the outset is that the point of the evidence on Mr Carrim's movements is not put up to try to disprove a psychiatric diagnosis.”
There have been repeated slippages in speech by Ms Hassim that required interjections and raised concerns about damage to client rights and dignity in relation to confidentiality claims.
“This is now the second incident where slippage is occurring ... the fact that I have had to record the objection now elevates the issue and create[s] the very damage that we have tried to protect my client from ... regarding the impact that can have on the dignity and privacy rights of someone who has made an express claim for confidentiality to avoid this exact situation.”
No reply has been given to the expert's affidavit and the doctor's so-called expert has not challenged the affidavit besides what was heard from Mr Premhid.
“there is no reply to our expert . ... other than what we have heard from Mr Premhid , their doctor , their so-called , their expert has not challenged the affidavit”
Mr Premhid originally volunteered to attend the postponed hearing but was told it was not necessary and he is not absent in defiance of the commission.
“Mr Premhid certainly volunteered to come here for this postponement by agreement. ... So he is not absent in defiance of the Commission or anything like that.”
Mr Premhid refers to a confidential medical report concerning Mr Carrim and points out that the learned friend’s contention about inability to explain attendance is contradicted by medical evidence from an expert in a specific medical field.
“I am going to refer you to the confidential medical report ... When you read paragraph 1 of that report, that will deal with my learned friend's contention that there is an inability to explain attendance ... that is contradicted by the medical evidence of an expert in a particular field of medicine”
Mr Premhid is concerned that the postponement application and allegations about his client's movements are being used to undermine unchallenged medical evidence.
“I am now concerned that we are inadvertently using the postponement application and the allegations regarding the movements of my client or otherwise, as a mechanism through the back door to undermine the otherwise unimpugned medical evidence in front of you”
Mr Premhid contends that serious accusations require formal written notice rather than informal verbal communication between colleagues.
“formally in writing because these are very serious accusations and I understand that my learned friend is under his collegial obligation to give me notice that he was going to raise it today at the hearing, but he could have perhaps, we could have reached some or other arrangement about being informed about this formally and then given an opportunity to respond”
Mr Premhid clarifies that there is no inconsistency between wanting an independent examination and subpoenaing a doctor; both options are open to the Commission.
“My client placed on record that the power of independent examination is open to serious doubt... I used the phrase, there are less intrusive means that are available to the Commission, if there is a doubt about the medical evidence and the subpoenaing of the doctor is one such option. So there is no inconsistency between what I have said to you today and what I have said to you previously...”
Mr Premhid flagged that there will be an in camera request coming and it would need to be considered how to argue it balancing interests in front of the Chairperson at the Friday hearing.
“I have already flagged the fact that there is going to be a request for in camera ... how it is going to be argued in front of you in a way that balances”
There are concerns about adverse inferences being drawn against Mr Carrim for not participating in a voluntary medical examination, which must be addressed carefully in light of the nature of the commission's request and opportunity to respond.
“... if it is attenuated to being voluntary, that might not be objectionable in and of itself, but then it depends on what weight will be placed on the election that is otherwise voluntary to ask the Commission to draw adverse inferences against my client for not participating in a voluntary request...”
An adverse inference can be drawn at the final stage of report writing analyzing the evidence, and this is consistent with the ordinary rules of evidence.
“And if you draw an adverse inference at the end stage of your report writing in analysing the evidence, that cannot be objectionable. That is the ordinary rules of evidence as we understand it.”
If adverse inferences are drawn from failure to participate in the voluntary medical examination process to answer allegations, this follows ordinary principles of evidence and cannot be objected to unless valid questions like audio evidence arise.
“But if it is the second one, which is that it is unanswered allegations and therefore I am drawing inferences because of the failure to answer, that is the ordinary principles of evidence that cannot be objected to, unless of course, there is a question of audio or whatever”