The Madlanga commission of inquiry has ruled that WhatsApp messages belonging to a newly introduced witness, identified as Witness F, will be exhibited before the inquiry without his active participation.
The ruling comes amid renewed legal efforts by Witness F’s legal team to delay proceedings.
On Tuesday, Witness F’s lawyer, Hartley Ngoato, said they approached the high court seeking a postponement, filing an application to interdict the commission from using the WhatsApp messages as evidence.
Defence rejects WhatsApp messages
Ngoato argued that the WhatsApp chats should not be displayed before the commission. He contends that some messages are factually incorrect and potentially self-incriminating. And he further claimed that the way the messages were compiled misrepresents their origin.
Ngoato further emphasised President Cyril Ramaphosa’s recent pronouncement calling for criminal investigations against several officers, including his client, saying this heightened the risk of self-incrimination.
However, Commissioner Sandile Khumalo countered that the president’s statement made no reference to criminal charges against any individual. Khumalo further remarked that if Ngoato’s argument were accepted, witness F would never be able to testify before the commission.
Commissioner Sesi Baloyi added that Ngoato had no basis to claim that his client would necessarily incriminate himself.
She added that, as matters stand, the commission is entitled to proceed with its work.
Focus on the essence of the messages
“They are incorrect in the manner in which they have come from. Because the entire bundle of documents only shows outgoing and ingoing messages,” Ngoato said.
“Even the WhatsApps that somebody forwarded to him and he sent on to somebody else, only show that he is the sender. [Thus] making him appear as the originator, when in fact he was not.”
However, the commission ruled that Advocate Matthew Chaskalson continues with the questioning of witness F.
Commission chairperson Mbuyiseli Madlanga further ruled that commissioners themselves would be free to ask questions arising from the messages as they see fit.
Madlanga also expressed concern over the conduct of Ngoato. He questioned why he personally needed to attend the high court to file an application.
He described it as unprofessional that the commission was made to wait for him.
Advocate Chaskalson added that the high court application amounted to an abuse of process. He said it should have been raised earlier, during the first application for postponement before the commission.
He maintained that witness F’s WhatsApp messages constitute the most relevant evidence before the commission. They surpass all other evidence presented thus far.
Witness has option to not answer questions
Chaskalson also noted that witness F retains the right to refuse to answer any questions he believes may be self-incriminating.
He proposed that over the next two days, the WhatsApp messages be displayed to the commission to demonstrate their significance. After this, Witness F could decide whether to clarify any of the content.
Ngoato opposed this proposal. He argued that displaying the messages would implicate his client and undermine his right to a fair trial.
And he claimed that some of the messages appear to portray witness F as their author. When in fact, they were merely forwarded.
Last week, the commission granted Witness F a postponement to allow his legal team time to review more than 4,000 pages of documents. They claim they were not provided to them timeously.
READ MORE: Madlanga commission postponed as witness wants more time to prepare testimony
