Hearing day 147

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”

Mr Carrim will never testify, even if the evidence hearing is postponed to a later date.

“Mr Carrim never, ever testifies”

The treating doctor of Mr Carrim states that his medical condition is dynamic and subject to change; the doctor proposes to update the Commission every two weeks about Mr Carrim's fitness to testify.

“the treating doctors says is that the position of my client is dynamic and it is subject to change ... the treating doctor himself proposes to account to the Commission under oath once every two weeks to update the Commission regarding the client's position and whether he can or cannot testify”

The Commission's Evidence Leaders oppose the application to defer Mr Carrim's testimony to an indefinite date and want a specific date to be set for his appearance.

“the Evidence Leaders oppose that. And in their opposition, they say, we want him to come back on a specific date”

The application for postponement of Mr Carrim's evidence today is opposed by the Commission's Evidence Leaders who want a definite date for Mr Carrim's testimony rather than an indefinite postponement.

“a correct proposition. You are asking for a postponement to an indefinite date ... The Evidence Leader so oppose that ... we want him to be given a date to come and appear. So there is an opposition to your application”

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”

There is a concern about the publication of exact GPS coordinates from mobile data geolocation information due to the risk of reverse-engineering exact locations, especially near sensitive facilities in Durbanville suburb.

“when it is projected onto the Commission's screen, if the Commission intends on doing that, to prevent the publication of exact GPS coordinates is because it opens the threat that the GPS coordinates, when projected onto the screen, can be used to reverse-engineer exact locations ... I am raising a concern in respect of the facility, for example, and geolocation data near the facility ... in respect to the suburb that the facility is located in, that the name of the suburb is not mentioned explicitly”

The Commission is requested to limit public access to certain parts of the record to prevent revealing information prohibited by the Chair's in-camera ruling.

“the request is that should any part of the record become public, that it is subject to the limitations already imposed by the Chair in the in-camera ruling”

The exact suburb name where a facility is located should not be explicitly mentioned to prevent easy identification of a facility.

“that in making such a directive, when my learned friend is going to refer to or reference the suburb that the facility is located in, that the name of the suburb is not mentioned explicitly”

Projection of mobile data geolocation information on the Commission's screen should be limited to prevent publication of exact GPS coordinates to avoid enabling reverse-engineering of exact locations.

“when it is projected onto the Commission's screen, if the Commission intends on doing that, to prevent the publication of exact GPS coordinates is because it opens the threat that the GPS coordinates, when projected onto the screen, can be used to reverse-engineer exact locations”

Video footage and geolocation data hold no clinical value as evidence according to the client's treating doctor.

“video footage and geolocation footage or geolocation information and so on does not have clinical value”

The video footage related to the matter is unnecessary, inappropriate as evidence, and does not serve any legitimate purpose, particularly given that allegations have been admitted by the client and representatives already.

“I am going to respectfully submit that the video footage is unnecessary today, and more than being unnecessary, it is also not appropriate and does not serve a legitimate purpose ... the allegations made by the Commission have now been admitted, answered to, and amplified by my client and the people deposing on his behalf ... the footage is not needed to prove admitted facts”

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”

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”

The medical practitioner's opinion is that video and geolocation footage does not have clinical value and therefore is inappropriate as evidence for the medical issue related to the client's postponement.

“the position of the clinician, for reasons that you know which are recorded on the papers, is all that demonstrates is movement of some kind ... the movement of some kind is of no value in determining the clinical issue as to why the client cannot attend or attend the Commission to give evidence”

The medical issue causing the postponement does not relate to disputed facts about the client being at Durbanville on the day and time in question.

“the facts are not in dispute and the client was at Durbanville on the day and time”

The Commission relies on evidence including CCTV footage, Apple Pay data, and geolocation data, but the clinician asserts that such evidence only shows movement and does not determine the clinical issue of why the client cannot attend the Commission to give evidence.

“The medical practitioner says that the Commission relies on a bunch of evidence such as CCTV footage, Apple Pay data regarding payment accounts, movement data gleaned through geolocation data... is all that demonstrates is movement of some kind... is of no value in determining the clinical issue as to why the client cannot attend or attend the Commission to give 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 Commission's case doubts the medical evidence of Mr Carrim's treating clinician based on his presence at X place recorded on CCTV footage.

“the 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 brings into doubt the medical diagnosis that the clinician has given him”

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.”

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”

The medical evidence from Mr Carrim's treating clinician about clinical diagnosis and observations is undisputed and challenged only on collateral issues by the Commission’s expert report.

“the medical evidence in front of you from Mr Carrim's treating clinician is undisputed on the clinical diagnosis and the clinical observation that Mr Carrim's treating medical professional makes. There is an expert report, and I am not even going to mention the expert's name, put up by the Commission, which generously does not actually dispute that clinical observation. What it does is it speaks to two collateral issues.”

The Commission's expert report does not dispute the clinical observation of Mr Carrim's treating doctor, but raises two collateral issues, including inappropriate suggestion that Mr Carrim's doctor should perform an Independent Medical Examination (IME).

“There is an expert report, ... put up by the Commission, which generously does not actually dispute that clinical observation. What it does is it speaks to two collateral issues. ... he talks about it being inappropriate for Mr Carrim's physician... to perform what is called an independent medical exam on Mr Carrim... that IME cannot be used as a basis to impugn Mr Carrim's medical doctor's clinical observations because Mr Carrim's medical doctor never performed an IME.”

The medical evidence from Mr Carrim's treating clinician is undisputed on the clinical diagnosis and clinical observations made.

“the medical evidence in front of you from Mr Carrim's treating clinician is undisputed on the clinical diagnosis and the clinical observation that Mr Carrim's treating medical professional makes.”

Mr Carrim's medical doctor did not perform an Independent Medical Examination (IME); therefore, the IME cannot be used to impugn his doctor's clinical observations.

“the simple point about that IME and why then it cannot be used as a basis to impugn Mr Carrim's medical doctor's clinical observations is Mr Carrim's medical doctor never performed an IME. An IME is an entirely separate form of medical examination that is performed in a forensic context where there needs to be, understandably, a degree of separation or independence between the medical examiner and the ultimate patient.”

Mr Carrim's treating doctor did not perform an IME; an IME is a forensic medical examination done independently from the patient, which is different from the treating doctor's clinical role.

“Mr Carrim's medical doctor never performed an IME. An IME is an entirely separate form of medical examination that is performed in a forensic context... a degree of separation or independence between the medical examiner and the ultimate patient.”

The Commission's expert argues that Mr Carrim's treating doctor is not independent enough to perform an IME, which leads to undermining the clinical evidence presented by that doctor.

“the Commission's expert... says that the treatment Mr Carrim is receiving can never be an IME exercise because he is not, inverted commas, independent enough of Mr Carrim... seems to undermine the clinical evidence in front of you from that doctor is to say he is not entitled to perform an IME and what he is given you is not an IME.”

The Commission's expert criticizes Mr Carrim's medical practitioner for allegedly not doing an IME exercise and says the treatment cannot be an IME because there is no independence; however, the treating doctor is not providing forensic independent evaluations.

“the Commission's expert attempts to make is that the Commission's expert, as we understand it, says that the treatment Mr Carrim is receiving can never be an IME exercise because he is not, in inverted commas, independent enough of Mr Carrim. And the point I am making is that is exactly correct because the treating doctor is not performing an IME for some forensic, independent, objective, evaluative purpose like under Section 79 inquiry or under a Rule 36 type inquiry. He is the patient's, Mr Carrim's, own treating doctor.”

The medical report highlights the central role of Mr Carrim's treating doctors before any directive can be given for a medical examination by another.

“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...”

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.”

Mr Carrim's treating doctor's clinical views indicate Mr Carrim's inability to give evidence, which is a known but not public fact.

“Mr Carrim's treating doctor's clinical views speak to Mr Carrim's non-ability to give evidence. And I am using ability deliberately because that obfuscates what is known to us but not to the world at large.”

Mr. Carrim's treating doctor opposes the unilateral interposition of another doctor in the medical treatment of Mr. Carrim, suggesting that any other doctor's interposition should be done only in consultation with the treating doctor.

“Mr Carrim's doctors say such an assessment , in fact I think the doctor uses the word interposing , so if another doctor is interposed that will be deleterious to the treatment that Mr Carrim is undergoing .”

Mr Carrim's independent doctor's assessment states that interposition of another doctor would be deleterious to Mr Carrim's treatment.

“Mr Carrim's doctors say such an assessment, in fact I think the doctor uses the word interposition, so if another doctor is interposed that will be deleterious to the treatment that Mr Carrim is undergoing.”

The treating doctor asserts that if another doctor is to be interposed despite opposition, this should be done only in consultation with the treating doctor and with their involvement.

“another doctor should be interposed that should be done in , I am paraphrasing here , I have forgotten the actual wording , that should be done in consultation with me . I should be involved .”

If another doctor is to be interposed despite the treating doctor's opposition, it should be done only in consultation with the treating doctor, who must be involved in the process.

“if despite that the position is that another doctor should be interposed that should be done in, I am paraphrasing here, I have forgotten the actual wording, that should be done in consultation with me. I should be involved.”

The treating doctor's position is that unilateral or compelled interposition of another doctor without the treating doctor's consultation or facilitation is opposed, but voluntary interposition with consultation and facilitation that is not clinically detrimental would be acceptable.

“the position of the doctor is that it is not to say that none should be interposed as a blanket position . It is to say none can be interposed unilaterally or in a compelled sense that the doctor resists and then the doctor's position in respect of what then , so in other words if it is voluntary does it come through me or whatever the case might be , is expressly dealt with in that same affidavit ... The doctor's position is to say that I must be consulted and if I can facilitate something which is not clinically detrimental to my client 's , my patient 's current position or future position then I would have to give medical advice in that regard .”

The doctor's position is to be consulted and able to facilitate non-clinically detrimental actions to the patient regarding interposing another doctor.

“The doctor’s position is to say that I must be consulted and if I can facilitate something which is not clinically detrimental to my client’s, my patient’s current position or future position then I would have to give medical advice in that regard.”

The treating doctor does not oppose the interposition of a third-party medical practitioner if voluntary consent is obtained and the interposition is less intrusive than compelled attendance.

“the doctor has himself spoken about less intrusive means in a multiple, in a multitude of manifestations and if the doctor interposing in respect of a third party to obtain voluntary consent, whether it is given or not given, is within the basket of those less intrusive means as I see it because it is not the compelled examination”

The treating doctor would not object in principle to another doctor's involvement if a properly constituted assessment occurs and if, after engaging with the Commission, the doctor remains satisfied.

“A properly constituted assessment stands in a different footing . If after engaging me the Commission remain unsatisfied I do not object in principle .”

There is no principled objection by the treating doctor to the idea of interposing another doctor, provided engagement occurs and conditions agreed upon.

“he is given a report, then he must be engaged with about his report by the Commission and if we land at not being satisfied out of our engagement with him arising from his report, then he does not have an objection to the interposition subject to whatever he says there . I understand you and the Chairperson to have formulated it as follows, that as matters stand, the doctor does not have an objection to an interposition provided there is a condition, the conditions in there met. Am I misunderstanding?”

The treating doctor specified that they would not object to the interposition of another doctor provided certain conditions outlined in their affidavit are met.

“as matters stand , the doctor does not have an objection to an interposition provided there is a condition , the condition in there met .”

The discussion concerns the deleterious effect of compelled examination by a third-party medical practitioner on the treating doctor's role, emphasizing that less intrusive means that respect the treating doctor's role are acceptable.

“what he is addressing in those circumstances is what 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 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 .”

Medical evidence from the client's doctor is unchallenged and authoritative, supported by established legal authorities such as the Hyatt case, which states that a committee should not disregard unchallenged medical evidence when deciding on disciplinary processes.

“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. ... it says: 'It would be wrong for a committee which has the livelihood and reputation of a professional individual in the palms of its hands to go with a hearing where there is unchallenged medical evidence that the individual is simply not able... to withstand the rigors of the disciplinary process.'”

CHAIRPERSON notes that there was strong opposition previously to an assessment by an independent doctor and no such counter-report was provided.

“I think at the last appearance you strongly opposed any idea of an assessment by an independent doctor, so on that basis there can be no question of us having a report by a doctor challenging what Mr Carrim 's doctor says. So we all understand why there is no opposition … It is not as if with an opportunity available for another doctor to counter this doctor 's report, no counter was furnished .”

The secondary evidence including CCTV footage, geolocation data, and the opposing party's own doctor's report do not challenge the client's medical evidence substantively.

“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”

There was no opposition to the idea of an assessment by an independent doctor at the last occasion, but there is disagreement on whether such an assessment can be compelled.

“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 and whether or not any inference could be drawn”

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”

Agreement is reached that if the medical examination is voluntary, no adverse inference can be drawn if the person declines to participate.

“if the voluntary examination is the mechanism with the interposition of Mr Carrim's own doctor or not, then that would be fine, because that also means that no adverse inference can be drawn if he declines to not participate in that”

ADV PREMHID argues his opposition was to compelled examination as a matter of civil procedural power, not voluntary examination.

“But then you and I landed on the agreement that no adverse inference could be drawn if it is a voluntary process.”

The Commission's legal power to compel examinations is questioned and opposed by ADV PREMHID, who distinguished the Commission's powers from those of a High Court in civil proceedings.

“That was opposition and you even, that was the context in which your referred to the rule in the context of civil proceedings, you said, you questioned our power... Our legal power to even compel. ... That is opposition”

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.”

CHAIRPERSON states no assessment voluntarily received from Mr Carrim or his attorneys despite multiple requests.

“If Mr Carrim was prepared at all to subject himself to the assessment we should by now have received something from him or his attorneys saying that here I am, I am willing to subject myself to that assessment that the Commission's attorneys have asked for more than once.”

There were letters written to Mr Carrim's attorneys requesting him to avail himself for an independent medical assessment, but there was no known positive response; instead the Commission faced vehement opposition to the possibility of such an assessment.

“at least two letters... were 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? ... what we got was the vehement argument by you against that as a possibility”

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 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.”

The assessment of medical risks and benefits requires clinical judgment and expert evidence, which the court would not normally make without expert evidence.

“The assessment of medical risks and benefits is a matter of clinical judgment which the court would not normally be able to make without expert evidence.”

There is no rebuttal evidence challenging the direct medical expert evidence concerning Mr Carrim's clinical condition presented to the Commission.

“so far as there is direct medical expert evidence in front of you is concerned, there is no rebuttal of that, it remains unchallenged”

A rebuttal witness, common in civil litigation to contest expert witness evidence, could have been brought in but was not, impacting the assessment of medical risks and benefits which require clinical judgment.

“a rebuttal witness could have been brought and the rebuttal witness like ordinarily happens in civil litigation where there are contesting expert witnesses”

The Supreme Court of Appeal (SCA) decision Michael v Linksfield Park 001(3) SA 1188 (SCA) states that assessment of medical risks and benefits is a clinical judgment requiring expert evidence, which the court cannot usually make without such evidence.

“The assessment of medical risks and benefits is a matter of clinical judgment which the court would not normally be able to make without expert evidence”

The expert report presented by the Commission expressly does not offer an opinion on the underlying medical assessment made by Mr Carrim's clinician.

“the expert report put up by the Commission itself expressly qualifies itself by saying I do not offer an opinion on the underlying medical assessment made by that clinician”

The Commission's own expert report expressly declines to offer an opinion on the underlying medical assessment made by Mr Carrim's clinician, indicating limitations in the alternative evidence's clinical value.

“the expert report put up by the Commission itself expressly qualifies itself by saying I do not offer an opinion on the underlying medical assessment made by that clinician”

There is no rebuttal expert medical evidence challenging the direct medical expert evidence regarding Mr Carrim's condition in the Commission, so alternative evidence sources should be viewed with caution.

“so far as there is direct medical expert evidence in front of you is concerned, there is no rebuttal of that, it remains unchallenged”

Electronic data cannot answer medical questions, and thus should not be relied upon over direct medical evidence from clinicians.

“the issue of the electronic data cannot answer the medical question”

There is a challenge regarding the reliability and manner of obtaining some electronic data evidence in the Commission, questioning its weight compared to direct medical evidence.

“there is a challenge to some of the evidence in front of you, how it was obtained, but more than just simply how it was obtained, whether it is reliable because of identified instances of errors in that evidence”

Any weight placed on challenged evidence with reliability questions should be less than weight placed on the direct medical evidence in the Commission's assessment.

“to the extent that any weight is going to be placed on that you should place less weight on that than you should the direct medical evidence in front of you”

There is a challenge to some of the evidence before the Commission concerning how it was obtained and its reliability due to identified errors in that evidence.

“there is a challenge to some of the evidence in front of you, how it was obtained, but more than just simply how it was obtained, whether it is reliable because of identified instances of errors in that evidence”

Any weight assigned to electronic evidence should be less than that assigned to direct medical evidence in assessing Mr Carrim's medical condition.

“to the extent that any weight is going to be placed on that you should place less weight on that than you should the direct medical evidence in front of you”

There is a threat of referral for prosecution if Mr Carrim does not appear again before the Commission, regardless of medical advice not to appear.

“there is a threat of a referral for prosecution if Mr Carrim does not appear again, whether advised or not advised to not appear based on his medical condition”

A prosecution against Mr Carrim would fail due to absence of wilfulness, which will be demonstrated through evidence at pre- or post-prosecution stages.

“any prosecution will fail because there is an absence of wilfulness, and that will be demonstrated on the evidence”

There is a threat of referral for prosecution if Mr Carrim does not appear again, regardless of medical advice about his condition.

“there is a threat of a referral for prosecution if Mr Carrim does not appear again, whether advised or not advised to not appear based on his medical condition”

Any prosecution related to Mr Carrim's non-attendance will fail due to the absence of wilfulness, as demonstrated on the evidence.

“any prosecution will fail because there is an absence of wilfulness, and that will be demonstrated on the evidence”

There is consensus between Mr Carrim's treating doctor and the Commission's own expert about the voluntary or facilitated nature of Mr Carrim's independent medical assessment.

“there is consensus between Mr Carrim's treating doctor... and the Commission's own expert”

The Commission's expert agrees with Mr Carrim's treating clinician on the matter of independent medical assessment and voluntary versus compelled examination issues.

“the Commission's own expert agrees with and if you look at paragraphs 18 to 19 of Annexure MT1 I think I have given you that already, you will see that there is a synergy between that”

There are many new allegations introduced in the answering affidavit to the Commission, including an accusation of trial ambush which is contested and has innocent explanations.

“there are many new allegations... a statement made about trial ambush... made clearly for Mr Carrim and his legal team and the deponents on his behalf to answer, and then they are ambushed after the fact”

If Mr Carrim does not appear again before the Commission, the Commission's Evidence Leaders will not entertain any postponement requests and will ask the Commission to make conclusions on the basis of unanswered evidence.

“the Commission's Evidence Leaders were emphatic that if Mr Carrim does not come again, they are not going to entertain this business about a postponement or no postponement, they were going to ask the Commission to make conclusions”

There are many new allegations introduced in Mr Carrim's answering affidavit, including a claim of a trial ambush, but there are innocent explanations for these allegations.

“there are many new allegations that are introduced in the answering affidavit of the Commission, and particularly in the correspondence, ... there is a statement made about trial ambush ... there are innocent explanations for these things”

Evidence Leaders had previously warned that if Mr Carrim did not appear again before the Commission, they would not consider postponements and would ask the Commission to make conclusions based on the unanswered pieces of evidence.

“the Commission's Evidence Leaders were emphatic that if Mr Carrim does not come again, they are not going to entertain this business about a postponement or no postponement, they were going to ask the Commission to make conclusions”

A virtual PA played a crucial role when Mr Carrim's bank account(s) were being closed by FNB, showing close involvement in his affairs.

“when Mr Carrim's bank account or bank accounts... was aware in the process of being closed by FNB, this virtual PA played a very crucial role in that process. So it seems to me that this is someone who is closely involved in Mr Carrim's affairs.”

Mr Carrim undertook to furnish the Commission with the names of auditors and financial statements of his companies but has not done so, and one entity denied auditing his companies despite being named.

“I think initially when Mr Carrim was testifying here on the 8th and 9th of March, I think, and he promised or undertook to furnish that information. In fact, I think in respect of the auditors, he furnished the name of an entity that eventually denied that it was auditing any of his companies.”

There has been a longstanding failure to provide the names of auditors/accountants and financial statements of Mr. Carrim's companies despite repeated requests and an oral undertaking by Mr. Carrim to furnish this information.

“the name or names of the auditors/accountants of Mr Carrim's companies ... the financial statements of those companies ... that information was asked for a long time ago ... Mr Carrim was testifying here on the 8th and 9th of March ... he promised or undertook to furnish that information ... Mr Chaskalson has repeatedly made the point about this information continuing to be outstanding and not being furnished”

Mr. Carrim's virtual personal assistant (PA) played a very crucial role in the process when Mr. Carrim's bank accounts were being closed by FNB, indicating she was closely involved in his affairs.

“when Mr Carrim's bank account or bank accounts ... was aware in the process of being closed by FNB, this virtual PA played a very crucial role in that process ... this is someone who is closely involved in Mr Carrim's affairs”

The person now running Mr. Carrim's businesses has been appointed and is very close to Ms. Hassim, and also assists with company affairs.

“someone very close to Mr Hassim ... someone very close to Mr Carrim and someone who has been appointed to run Mr Carrim's businesses in his absence”

The principle from the Gauteng High Court judgment in Truth Verification (Eloff AJ) states that if a witness makes fanciful or patently false statements in affidavits, those should be rejected outright without oral testimony.

“the principle relates to respondents who make fanciful or patently false statements on affidavit ... if what a witness says is either fanciful or patently false, it should be rejected out of hand and on paper without the need for oral testimony”

Mr. Carrim's deponent wife denies knowledge of who the auditors of his affidavits are, implying secrecy or lack of transparency.

“The deponent to Mr Carrim's affidavit ... I think I can mention that it is his wife ... she says, I do not know and she says, nobody else knows”

It is claimed that the idea that nobody within Mr. Carrim's companies, especially the person running the businesses and the virtual PA, can provide information about auditors or financial statements is patently false.

“the idea that nobody within these companies, in particular the person now running the businesses and this PA, nobody can furnish this information ... appears to be patently false”

The principle established in the Gauteng High Court case of Truth Verification by Eloff AJ states that a witness making fanciful or patently false affidavits should have those affidavits rejected without oral testimony; the Chairperson suggests this principle applies to applicants and respondents alike.

“the principle enunciated in that case was later made or adopted by the Supreme Court... if what a witness says is either fanciful or patently false, it should be rejected out of hand and on paper without the need for oral testimony... I do not see why it cannot apply to applicants as well.”

It is asserted that no one in the companies, including the person running them and the PA, can furnish information about the auditors or the financial statements, which the Chairperson finds patently false.

“the idea that nobody within these companies, in particular the person now running the businesses and this PA, nobody can furnish this information. Nobody knows anything about this information, subject to what you say, to my mind, this appears to be patently false.”

The deponent to Mr Carrim's affidavits, who is his wife, does not know who the auditors are and says nobody else knows either.

“the deponent to Mr Carrim's affidavits says, I do not know and she says, nobody else knows.”

The virtual PA managed the replacement of Mr Carrim's bank account(s) after closure and had access to and used an electronic signature during the process.

“She, open quote, managed the replacement, close quote... she had access to and used an electronic signature during that process.”

There is a suggestion that the involvement of Mr. Carrim's virtual PA in managing the replacement during the closure of bank accounts was limited and likely rubber-stamp in nature.

“managed the replacement”

It is disputed that the PA's role was limited to merely electronically signing; the PA managed activities beyond just signing documents.

“I am not sure that the third line suggests that all that she did was to sign electronically ... She managed. Otherwise, managed would be meaning less if all that she did was just to sign”

The virtual PA had access to and used an electronic signature during the process of managing the bank accounts closure.

“She had access to and used an electronic signature during that process”

The wife of Mr Carrim works in a role where she screens his calls and emails, liaises with banks including regarding account closures, facilitates payments of staff, and directs matters requiring attention to the appropriate person.

“she screens my husband's calls and emails, liaises with the banks, including in relation to the closure”

An individual working for Mr Carrim is actually his wife, who screens his calls and emails, liaises with banks, facilitates payments, and directs matters requiring attention.

“if you look at who she works for, it is not Mr Carrim himself, it is the wife ... all she does is she screens my husband's calls and emails, liaises with the banks ... facilitates payment of staff, and directs matters requiring attention to the appropriate person”

The individual working for Mr Carrim plays a supportive role and is not a decision-maker with expansive abilities.

“it is clearly that she plays a supportive role, and so she does not have this as expansive ability as Chair is perhaps suggesting”

There is an issue raised by the Chair regarding why within the institutions there is no single person who knows anything about the accountants or auditors, and why the information resides exclusively with Mr Carrim.

“how can it be that within these institutions, all of them, there is not a single person who knows something about the accountants or auditors? ... how is it that this information resides only in Mr Carrim's head?”

The individual named in paragraph 67.3 is doing nothing other than acting in a holding pattern and does not have the institutional knowledge backwards nor strategic insight going forwards.

“the individual concerned is doing nothing other than acting in a holding pattern or in a holding capacity, but does not have the institutional knowledge going backwards and also does not have the strategic insight and knowledge going forwards”

The individual named in paragraph 71, page 25, is acting in a holding capacity without institutional knowledge or strategic insight.

“the individual concerned is doing nothing other than acting in a holding pattern or in a holding capacity, but does not have the institutional knowledge going backwards and also does not have the strategic insight and knowledge going forwards”

Mr Carrim was put under some pressure to account for his business operations which appeared to be less than perfect.

“having regard to what has previously occurred where Mr Carrim was put under some pressure to account for his business operations which appeared to be less than perfect”

There was a debate between Commissioner Baloyi and Mr Carrim about how particular decisions are made, whether there are proper books of account and the regularity of what is going on inside the business from a corporate perspective.

“there was a debate between Commissioner Baloyi and Mr Carrim about how particular decisions are made or not made and are there proper books of account and what is the regularity of what is going on inside this business from a corporate perspective”

Businesses operate imperfectly and bookkeeping or company board resolutions are not maintained as the Companies Act requires.

“businesses operate imperfectly, they sometimes operate less elegantly than they should operate... bookkeeping or company board resolutions are not maintained in the way the Companies Act wants them to be maintained”

Mr Carrim was put under pressure to account for his business operations which were less than perfect, and he described the situation as it appeared without much detail.

“having regard to what has previously occurred where Mr Carrim was put under some pressure to account for his business operations which appeared to be less than perfect, he himself could not address that in any great detail other than to say that the businesses were and are what they are”

Businesses operate imperfectly and less elegantly than required by the Companies Act, and bookkeeping or company board resolutions are not maintained accordingly in the real world.

“businesses operate how businesses operate. They sometimes operate imperfectly, they sometimes operate less elegantly than they should ... booking or company board resolutions are not maintained in the way that the Companies Act wants them to be maintained ... these things happen in the real world”

Mr Carrim has been required to furnish certain information repeatedly but has not done so, unlike Mr Carrim who could do what was stated in the paragraphs referred to.

“Why is it that he cannot likewise do what he has been required to do, which is to furnish the information that has been requested repeatedly?”

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.”

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.”

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.”

Mr Carrim has suffered another medical incident and cannot provide instructions regarding the matter; the treating doctor has expressed frustration over the pressure Mr Carrim is under from attorneys relating to the Commission business.

“Mr Carrim has suffered another medical incident and that no instructions can be obtained by him in respect of what Chair has put to me... the clinician has expressed his frustration to Mr Carrim's attorneys because in his view, his client's position is deteriorating as a result of the pressure being put on him by his attorneys in respect of Commission and Commission business.”

Mr Carrim has suffered a medical incident and cannot provide instructions related to the inquiry as his doctor expressed frustration about the pressure Mr Carrim is under from his attorneys concerning the Commission business.

“I am advised that Mr Carrim has suffered another medical incident and that no instructions can be obtained by him ... The clinician has expressed his frustration to Mr Carrim's attorneys because ... his client's position is deteriorating as a result of the pressure being put on him by his attorneys in respect of Commission and Commission business.”

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 ...”

The treating doctor deals with Mr Carrim's business affairs only in a facilitative role and is not directly involved in running the businesses; paragraph 53 on page 45 explains this role and the context of the doctor's intervention.

“The doctor himself never says that he gets involved in the business per se. He has a facilitative role, where it is appropriate to play a facilitative role... paragraph 53.1 on page 45 gives you the context of how the doctor enters the equation.”

Mr Carrim's doctor does not specifically deal with the accounting-auditing issue that is pertinent to the Commission's information requests, and the doctor only has a facilitative role regarding Mr Carrim's business affairs, not involved in running his businesses directly.

“If I read his reports correctly, I do not recall that he deals with this aspect at all ... The doctor himself never says that he gets involved in the business per se. He has a facilitative role ... and the answer for that is paragraph 53.1 page 45.”

The doctor must make a clinical assessment before relaying any matter to Mr Carrim, not just relay a phone message or question.

“the doctor himself says that whatever matter has to go to Mr Carrim through the doctor is not just simply relaying a telephone message or relaying a question, but that the doctor himself has to make a clinical assessment at that moment in time”

The doctor himself must make a clinical assessment before relaying matters to Mr Carrim, not just relay a telephone message or question.

“the doctor himself says that whatever matter has to go to Mr Carrim through the doctor is not just simply relaying a telephone message or relaying a question, but that the doctor himself has to make a clinical assessment at that moment in time”

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 request for documents made to Mr Carrim dates back to 9 and 10 March and is months old by the time of this hearing.

“that request was made as far back as when Mr Carrim appeared in this Commission. That was on 9 and 10 March ... So, this request is months old.”

The request for documents was made months ago, as far back as when Mr Carrim appeared before the Commission on 9 and 10 March 2026.

“that request was made as far back as when Mr Carrim appeared in this Commission. That was on 9 and 10 March”

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 does not make strategic decisions or decisions concerning new business.

“the role of the son is that he does not make strategic decisions. ... 6 7. 3 says he does not make strategic decisions or decisions concerning new business”

The son of Mr Carrim assumes overall responsibility for overseeing the businesses and ensuring operations continue in Mr Carrim's absence, attending to matters requiring attention and overseeing payments and obligations.

“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 the payment of expenses and the continued performance of existing obligations”

Claim that the company or companies that do business amounting to hundreds of millions of rands cannot say who the auditor is or where to find the financial statements is indefensible.

“he is straining to defend an indefensible proposition that there is nobody in the company or in any of these companies which do business in the amount of hundreds of millions of rands who can say who the auditor is or where to find the financial statements”

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.”

The paragraph about the electronic signature does not say the auditor merely rubber-stamped the documents; appending the electronic signature was just one activity among others.

“That paragraph does not say that is all she did. It says that one of the things she did is that she appended an electronic signature. But that is not all she did.”

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.”

The point of evidence on Mr Carrim's movements is not to try to disprove a psychiatric diagnosis.

“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.”

There have been objections recorded related to the use of word choices during the in-camera hearing procedures affecting client's rights and dignity.

“I have had to object as itself now draw attention to something potentially and some client’s rights are now really being prejudiced”

The point of putting up the movements is to bear directly on Mr Carrim's demonstrated ability and day-to-day functioning capacity, not to disprove a diagnosis or challenge the clinical findings of the treating doctor.

“the point of putting up the evidence on the movements is not to disprove any diagnosis, not to use it to challenge the clinical findings of a treating doctor, but it is important because what it does is it bears directly on his, Mr Carrim's demonstrated ability, his day-to-day functioning capacity”

The purpose of putting up the movements evidence is not to challenge the clinical findings of Mr Carrim's treating doctor but to bear on his demonstrated ability and day-to-day functioning.

“the point of putting up the evidence on the movements is not to disprove any diagnosis, not to use it to challenge the clinical findings of a treating doctor, but it is important because what it does is it bears directly on his, Mr Carrim's demonstrated ability, his day-to-day functioning capacity.”

Mr Carrim was in fact in Durbanville on the 14th of July, supported by a deponent, his wife, and evidence including presence at a shopping centre such as Woolworths and other places.

“there is admission by Mr Carrim through the deponent, his wife, that he was indeed in Durbanville and at this particular shopping centre, that he went to Woolworths and this other place”

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.”

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”

Mr Carrim's attorneys improperly believe that postponements for the hearing are available upon request, exemplified by a 13 May 2026 letter attempting to postpone the next hearing without sufficient medical evidence.

“Mr Carrim's attorneys seem to believe that a postponement is available for the asking. One example of that is at page 67 of the correspondence bundle ... a letter dated 13 May 2026 from Mr Carrim's attorneys ... this is again an attempt to get a postponement of the next hearing ... this report is highly personal, suffice to state that our client has been laid off for at least 8 to 12 weeks, and that was all. No medical certificate or report or note or anything accompanied this.”

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.”

Mr Carrim's attorneys appear to believe that a postponement is always available upon request, as evidenced by repeated attempts to gain postponements.

“Mr Carrim's attorneys seem to believe that a postponement is available for the asking”

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”

A medical report supporting the postponement request was not initially provided and had to be obtained by the Commission after requests from Mr Carrim's attorneys.

“It required requests from the attorneys for the Commission to obtain the necessary medical report to underpin the postponement request that was made.”

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”

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”

Mr Carrim was allowed to bring a substantive application for a postponement to address his movements, supported by affidavits from his second wife and doctor describing restrictions on his movement and interactions.

“Mr Carrim was then afforded the opportunity to bring a substantive application for the postponement and in that application an opportunity was provided to address the latest information regarding Mr Carrim's movements around the Cape and this is addressed in two affidavits. The one... is by his second wife and the second affidavit is by his doctor”

The Evidence Leaders obtained CCTV footage to corroborate the whistleblowers’ account about Mr Carrim’s movements.

“The Evidence Leaders then obtained the CCTV footage to corroborate what we would be entold by the whistleblowers”

Mr Carrim was given an opportunity to bring a substantive application for postponement and responded with affidavits from his second wife and his doctor detailing the restrictions on his movements.

“Mr Carrim was then afforded the opportunity to bring a substantive application for the postponement and in that application an opportunity was provided to address the latest information regarding Mr Carrim's movements around the Cape and this is addressed in two affidavits. The one... is by his second wife and the second affidavit is by his doctor.”

Any leave from the hospital for Mr Carrim was authorized strictly for specific purposes, with passes subject to strict conditions including searches and return at specific times, including a 4-hour excursion on 14 July from 1:30pm to 5pm.

“any leave from the hospital would be authorized for specific purposes... passes that were subject to strict conditions, including searches...including on the return of the 14 July excursion, which was said to have been a four hour chaperoned excursion that took place between 1:30 in the afternoon and 5 p.m. in the afternoon”

Mr Carrim did not travel to Mahikeng or any other location in the North West during the period since 13 April 2026 according to affidavits from his wife and others; a contrary affidavit says he did travel during the week in question with his first wife but this is disputed as implausible given regular communication between the wives.

“My husband undertook no other travel during this period and did not travel to Mahikeng or any other location in the North West”

Mr Carrim's hospital leave was strictly controlled, with leaves authorized only for specific purposes, subject to conditions including searches, and the 14 July four-hour excursion was under such restrictions.

“any leave from the hospital would be authorized for specific purposes, that there were passes that were subject to strict conditions, including searches, etcetera, including on the return of the 14 July excursion, which was said to have been a four hour chaperoned excursion”

Mr Carrim did not travel to Mahikeng or any other location in the North West during the period starting 13 April 2026, according to his wife's affidavit.

“My husband undertook no other travel during this period and did not travel to Mahikeng or any other location in the North West”

It is implausible that Mr Carrim's second wife was unaware of the trip to the North West with his first wife, given regular communication between the two wives.

“that is implausible when we have regard to her own evidence that she communicates regularly with the first wife”

There is a conflicting affidavit painting a different picture that a trip to the North West took place during the week Mr Carrim was with his first wife, with the first wife unaware of the trip.

“a different picture is painted and what the deponents say later is that that trip to the North West took place during the week when Mr Carrim is with his first wife and so, says the deponent, she did not know about the trip and that is why she did not say anything about it”

It is implausible that Mr Carrim's wife would not know about the North West trip given their regular communication.

“it is implausible when we have regard to her own evidence that she communicates regularly with the first wife”

The visit by Mr Carrim to Mahikeng was to see his daughter and was important to him because he had not seen her for some time.

“this is just a visit to the daughter which was quite important to Mr Carrim, because as I understood it he had not seen her for”

Mr Carrim wanted to visit his daughter in Mafikeng, which was the reason for this particular travel, and not to visit his first wife.

“Mr Carrim who wanted to go there to see ... his daughter”

Mr Carrim’s visit to Mafikeng was important to him because he had not seen his daughter for some time.

“it was just a visit to the daughter which was quite important to Mr Carrim because as I understood it he had not seen her for ...”

Mr Carrim's wife and first wife communicate regularly, specifically about Mr Carrim's well-being and health.

“what they communicate about is Mr Carrim's well-being ... And his health”

The regular communication between Mr Carrim's wives is focused on Mr Carrim's well-being and health, not every movement or travel.

“what they communicate about is Mr Carrim's well-being ... and his health”

The medical incident led to a sudden need for Mr Carrim to return and was documented in the second wife's affidavit.

“That is right. And it was the deponent who took Mr Carrim to the doctor and accompanied him and was with him during the consultation”

There was a medical incident requiring Mr Carrim to return quickly, accompanied by a deponent who took him to the doctor and was with him during the consultation.

“because there was a medical incident ... That was the deponent who took Mr Carrim to the doctor and accompanied him and was with him during the consultation”

It is unlikely that the second wife would have forgotten the medical incident requiring the sudden return.

“so your point is it is unlikely that the second wife would have forgotten about this incident”

There was a medical incident that led to Mr Carrim's return from Mafikeng, which required a consultation accompanied by the deponent.

“there was a medical incident ... and it was the deponent who took Mr Carrim to the doctor and accompanied him and was with him during the consultation”

The deponent argues it is unlikely the second wife would have forgotten about the medical incident that prompted Mr Carrim's return.

“So your point is it is unlikely that the second wife would have forgotten about this incident”

The doctor states the facility's records show Mr Carrim departed at approximately 1:30 pm and returned at approximately 5 pm on 14 July, and such excursions are not unusual.

“the facility's records reflect that he departed at approximately 1:30 and returned at approximately 5... these kind of excursions are not unusual”

Mr Carrim's movements to North West became contentious and the doctor’s affidavit confirms the 14 July incident lasted 4 hours for purchasing toiletries and medication, with precise times recorded in facility's records.

“The doctor's version on the 14th of July in his first affidavit ... the description of the 14th of July incident ... confirmation that it was 4 hours ... for the purpose of purchasing toiletries, over the counter flumedication”

The facility is not a place where a patient may enter and leave at will; leaving requires a pass from the treating doctor or self-discharge.

“I deal next with the facility's leave regime because I understand that an impression may exist that the facility is a place a patient may enter and leave at will. That impression would be false.”

Movement from the hospital facility is not at will; it is only authorized through the treating doctor or by the patient discharging himself.

“I deal next with the facility's leave regime because I understand that an impression may exist that the facility is a place a patient may enter and leave at will. That impression would be false. ... there is only one or two ways that a person could leave, on the pass of the treating doctor or ... if the person discharges himself”

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”

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.”

Mr Carrim was at Woolworths shopping centre, purchased a meal from Kauai, ate there, and then obtained medication while under security supervision.

“Mr Carrim was at a shopping centre, that he was at Woolworths... she then purchased a meal from Kauai, finished his meal at Kauai and thereafter obtained flumedication. He was supervised throughout by his security detail.”

On 14 July, Mr Carrim was at a shopping centre Woolworths, ate a meal at Kauai, and obtained flu medication, all while being supervised by a security detail.

“confirmed in paragraph 27 that Mr Carrim was at a shopping centre, that he was at Woolworths, that he then purchased a meal from Kauai, finished his meal at Kauai and thereafter obtained flu medication. He was supervised throughout by his security detail”

The discrepancy in the time period a pass was for, with evidence suggesting it was almost 12 hours, much longer than initially mentioned shorter period.

“The second point is that if you look at page 68, paragraph 28.3 ... a much longer period of time ... it was almost 12 hours.”

There is a discrepancy regarding the duration of a pass, which was almost 12 hours instead of the shorter period initially mentioned of four hours.

“if you look at page 68, paragraph 28.3, ... It was almost 12 hours.”

The deponent confirms that when he arrived in the morning, the times of departure and return showed a much longer period than initially alleged, indicating a discrepancy in the affidavit.

“it is confirmed by this deponent who says when he arrived where she in the morning ... The hours were much, much longer.”

The deponent cannot identify every occasion or travel and leave excursions from the facility, and accepts the geolocation data generally reflects her husband's movements without disputing the accuracy.

“I am unable to identify every such occasion and that is travel and leave excursions from the facility ... I accept that the geolocation data generally reflects my husband's movements. I do not dispute the accuracy of the data or seek to explain it away.”

They did not depart together, nor did they consult together with the doctor upon return, and consultation took place much later at night than just after 5 o'clock.

“They did not depart together. ... They did not consult together either with the doctor upon return. And then the final thing is that consultation took place much later at night than just after 5 o'clock.”

The medical opinion given regarding Mr. Carrim's movements is based on flawed factual information as the doctor was not fully informed of the true movements.

“the doctor's own medical assessment and the report that was furnished to the Commission appears to have been based on a flawed factual foundation.”

Almost every single day Mr. Carrim leaves the facility and on most days he is out for at least eight hours, sometimes longer.

“almost every single day Mr Carrim leaves the facility and that on most days he is out of the facility for at least eight hours, sometimes longer.”

The affidavits of the deponents shift their accounts each time they are presented with objective evidence concerning Mr. Carrim's movements.

“each time that the deponents are presented with, confronted with objective evidence concerning Mr Carrim's movements, the explanation changes.”

The affidavits and evidence presented show shifting accounts from the deponents concerning Mr Carrim's movements, changing with presentation of new objective evidence.

“these shifting accounts in the affidavit are important, because they show that each time that the deponents are presented with, confronted with objective evidence concerning Mr Carrim's movements, the explanation changes”

The affidavit shows that Mr Carrim leaves the facility almost every day and is out for at least eight hours, sometimes longer, contradicting earlier patient references.

“almost every single day Mr Carrim leaves the facility and that on most days he is out of the facility for at least eight hours, sometimes longer”

According to medical protocol, a patient may only leave a facility either with a pass by the doctor or if the patient wants to discharge themselves.

“a patient may only leave, and underlined only, in one of two ways which is a pass by the doctor and also if a patient wants to discharge themselves.”

The doctor’s medical assessment and report to the Commission were based on flawed factual foundation due to lack of full knowledge of Mr Carrim's comings and goings from the facility.

“the doctor’s own medical assessment and the report that was furnished to the Commission appears to have been based on a flawed factual foundation”

The doctor made a categorical statement that people go out of the facility only in two lawful ways: pass by doctor or self-discharge, which contradicts later statements about nurses issuing passes.

“a patient may lawfully leave the facility only one of two ways. But later ... the doctor ... tells us about the possibility of nurses also issuing passes”

A patient may lawfully leave the facility only in one of two ways: by pass issued by doctor or if patient discharges themselves.

“a patient may lawfully leave the facility only in one of two ways. But later ... the doctor ... tells us about the possibility of nurses also issuing passes”

The doctor changed the account on how passes are issued, including nurses issuing passes, which was not in the first affidavit and came only after being presented with different evidence.

“which is a very fundamental change from the first affidavit. You do not need to have been presented with this data ... to make an accurate statement ... that in fact what he said was not correct because the facility protocol is not followed, that in fact the practice of keeping records is that it is just not honoured”

In a supplementary affidavit, the doctor stated that if he is not available to authorize passes, then nurses will do so, which is a fundamental change from the first affidavit.

“if he is not available then the nurses will authorise. So which is a very fundamental change from the first affidavit.”

It is quite telling that the doctor and the second wife move and change their allegations once confronted by objective facts about Mr. Carrim's movements.

“it is quite telling that you have these movements in the allegations on Mr Carrim's side, not by one person only. The second wife also moves or changes her allegations once confronted by facts that contradict what she says ... this is happening with the doctor as well.”

The doctor gave reports to the Commission based on information given by Mr Carrim, which is now known to be false, thus the reports do not hold true anymore.

“The doctor ... is relying on what Mr Carrim tells him about his movements ... Those reports do not hold true anymore”

The doctor admits that the facility protocol for issuing passes is not followed and no records are kept as required, which he only disclosed in the second affidavit.

“at paragraph 18 is where the doctor explains that in fact what he said was not correct because the facility protocol is not followed, that in fact the practice of keeping records is that it is just not honoured, that there are not any records.”

The doctor provided a new account on how the pass system works only after being presented with different evidence, which was not in the founding affidavit.

“So we did not ask for the specific question of passes to be addressed in the founding affidavit. That was done of the doctor's own volition. ... Why did it come up only when presented with different evidence?”

The facility protocol for recording patient pass-outs is not followed; there are no records, and the doctor does not keep his own notes about when he issues or authorizes pass-outs.

“the facility protocol is not followed, that in fact the practice of keeping records is that it is just not honoured, that there are not any records. The doctor also tells us that he himself does not keep records”

The doctor does not keep records or notes of when he issues or authorizes pass-outs, and the facility protocol of record-keeping is not followed and not honoured.

“the facility protocol is not followed, that in fact the practice of keeping records is that it is just not honoured, that there are not any records. The doctor also tells us that he himself does not keep records. He does not keep his own notes of when he issues or authorises pass-outs.”

The doctor relied on information from Mr. Carrim about his movements when giving reports, but later it was found that he was being given untruthful information and hence reports no longer hold true.

“the doctor, he is relying on what Mr Carrim tells him about his movements. He now knows that he is not being told the truth about the movements. ... Those reports do not hold true any more.”

The treating doctor's report is in breach of professional guidelines because it involves the treating doctor providing an independent assessment, which should not be done according to the guidelines referenced by the doctor's affidavit.

“the argument that the doctor's report is definitive is also extraordinary for another reason, because it itself is a breach of the professional guidelines that are referred to by our doctor in his affidavit”

The treating doctor must be insulated from any examination by an independent specialist, and the treating doctor's determination of capacity is a conflicted and unreliable assessment.

“the witness must be insulated from any examination by an independent specialist ... a conflicted determination of capacity by the treating doctor is in fact reliable”

The witness must be insulated from examination by an independent specialist as the treating doctor's determination of capacity is unreliable due to conflict and breach of guidelines.

“they say that then the witness must be insulated from any examination by an independent specialist ... the treating doctor's determination is in fact reliable, because ... the paragraph 3 and 73 of their doctor's affidavits saying that there should not be an independent examination”

The treating doctor should not provide an independent assessment of the individual's capacity to participate in proceedings because of subjectivity and advocacy for the patient; independent assessment should be done by a different doctor.

“those professional guidelines, which say that a treating doctor should not be the person to provide an independent assessment ... the treating doctor is inherently subjective and an advocate for the patient”

The doctor's report is not definitive and breaches professional guidelines by being provided by the treating doctor who is inherently subjective and an advocate for the patient, thus the assessment of capacity should be independent and forensic.

“the argument that the doctor's report is definitive is ... a breach of the professional guidelines ... the treating doctor should not be the person to provide an independent assessment ... the individual's capacity ... the objective determination of the capacity”

There was a request since May for an independent medical examination that went unanswered, and no positive response was received to agree to such an examination despite repeated requests.

“there was a correspondence from, I think, May, if not earlier, in which that was requested ... the correspondence went unanswered on that point ... we did get answers to other parts ... but not to this ... after so many requests, the stonewalling is no independent medical assessment ... there was never a positive response to this, which is yes or no”

Professional guidelines require an independent assessment interposed to test for a particular outcome, making it a forensic matter and not one handled solely by the treating doctor.

“there is an interposition then ... there is an independent assessment testing for a particular outcome ... and that is why it is forensic”

An independent medical examination is required and permissible according to professional guidelines, to test for a particular outcome in a forensic setting.

“the guidelines say that it is not only permissible, it is required that there is an interposition then, in the sense that there is an independent assessment testing for a particular outcome, and that is why it is forensic”

The treating doctor's assessment is unchallenged and must be accepted by the Commission, leading to circular reasoning that no independent assessment is allowed and no challenge is possible.

“accept what, his says ... no, you cannot have an independent assessment ... no one is able to assess the treating doctor's determination is unanswered ... it is unchallenged and so it must be accepted ... it is circular reasoning”

Despite multiple requests, there was never a positive response from the other party to the request for an independent medical examination; this lack of response amounts to a binding acceptance of the treating doctor's assessment.

“there was never a positive response to this, which is yes or no ... so why not? ... no response ... our expert is unchallenged ... and therefore ... the Commission must be now bound by that doctor's assessment”

The expert attached his CV and is the former Chair of the professional association regulating the field in which the doctor practices. He is highly experienced and co-authored the guidelines referenced in the report.

“this expert has attached his CV. He is the former Chair of the professional association that regulates the very field in which their doctor practices. He is extremely experienced, and he is the co-author of the guidelines that he refers to in this report”

The expert was not asked to assess Mr Carrim's paper and could not do so because only the doctor's affidavit was provided, which lacked details like treatment protocols.

“this expert was not asked to do an assessment on paper of Mr Carrim, nor could he have been able to do so because all that he was provided with was their doctor's affidavit . And their doctor ... does not set out the details of things like the treatment protocol”

The expert referred to in the report is the former Chair of the professional association that regulates the medical field relevant to their doctor.

“He is the former Chair of the professional association that regulates the very field in which their doctor practices.”

The expert was not tasked to assess Mr Carrim's paper and could not do so based only on the doctor's affidavit provided.

“this expert was not asked to do an assessment on paper of Mr Carrim, nor could he have been able to do so because all that he was provided with was their doctor's affidavit”

The doctor's affidavit did not set out clinical details such as the treatment protocol, meaning the expert could not give a meaningful opinion based on it.

“their doctor, which is something that I should actually point out, because it does go to the reliability of that report, does not set out the details of things like the treatment protocol, etcetera. And I do not want to say too much more about that, but there is not that kind of detail in any event. So it would not have even been possible for our expert to give a meaningful opinion based on that affidavit”