Dudu Myeni failed to appear at the Zondo Commission on Tuesday (May 25) to give evidence on Eskom and aviation-related matters.
She last appeared before the commission on November 4, 2020, and in the misguided belief that she had the right to remain silent, did so for most of her “testimony” – until it came to disclosing the identity of a protected witness.
Then she chose to speak up.
Discussion of Myeni’s non-appearance
Evidence leader Kate Hofmeyr said that Myeni’s non-appearance “is nothing less than a defiance of the commission, and it is time for the law to take its course”.
Evidence leader Pule Seleka SC said that in October 2020 the commission requested Myeni to file an affidavit in regard to Nick Linnell (‘Mr Fix-it’ involved in SAA and Eskom) and former Eskom board chair Zola Tsotsi.
Myeni did not respond and did not submit an affidavit.
Commission chair Deputy Chief Justice Raymond Zondo reached a decision:
- It is not acceptable that Myeni did not comply with the summons and did not present herself.
- There is no valid reason for her not to appear.
- The secretary of the commission must lay a criminal complaint with the South African Police Service for acting in breach of the summons and the Commissions Act.
- Myeni must make herself available to give evidence whether by zoom or any other virtual method – and “this must happen today”.
- Myeni must be available from 14:00 (Tuesday, May 25).
Is privilege against self-incrimination justified?
Homeyr dealt with the matter held over from the previous session in regard to whether the invocation of privilege against self-incrimination was justified. She informed the commission that the Constitutional Court in January gave a judgment on self-incrimination in the case between the secretary of the commission and former president Jacob Zuma.
Hofmeyr read paragraph 109 of the judgment: “However, it lies with a witness before a commission to claim privilege against self-incrimination. In the event of doing so, the witness must raise the question of privilege with the Chairperson of the Commission and must demonstrate how an answer to the question in issue would breach the privilege. If the Chairperson is persuaded, he or she may permit the witness not to answer the question. Privilege against self-incrimination is not there for the taking by witnesses. There must be sufficient grounds that in answering a question, the witness will incriminate himself or herself in the commission of a specified crime.”
Hofmeyr informed the commission that the legal team had concluded that Myeni had abused this privilege.
Zondo directed that Myeni will have to answer the questions that she declined to answer at the last session due to invoking privilege, by affidavit, to be delivered to the commission by June 7.
Myeni addressed Zondo in isiZulu, saying she wanted her neighbours to hear her side of the story.
Zondo said that she had not asked for an interpreter, and that she must answer in English but can later submit her answers in isiZulu in writing. He said the commission could consider this and admit it with the evidence and put it on the website.
Eskom-related evidence, led by Seleka
Linnell had testified to the commission that he met with Myeni on March 6, 2015 at the former president’s official residence in Pretoria, to which he was called by Myeni.
Read: How did an outsider get to call the shots on Eskom? (Oct 2020)
She informed him that Zuma wanted a commission of inquiry into Eskom, and that they would attend a meeting with the former president at his official residence in Durban on March 8, 2015. Tsotsi had also testified about the meeting.
Myeni gave her version of the meetings:
- She said it is unfortunate that the commission is not delving into the real reasons as to how she met Tsotsi. She said that he came to her to facilitate a meeting with Zuma.
- She then addressed Zuma in isiZulu, saying this is a “sensationalist involvement of Zuma, and my involvement”.
- “I am now going to be very clear … I have never been in any board meeting with Eskom.” She was never interested in Eskom, but Tsotsi was; “this whole thing was so dramatised by him … saying things that are inaccurate”. She claimed that the meeting took place at the insistence of Tsotsi.
- She had no personal interests in the affairs of Eskom, the only person that had problems at Eskom was Tsotsi. “I had too many problems with SAA to deal with Eskom.”
- She had too many problems at Eskom and had other responsibilities. Tsotsi wanted to use her to hide corruption he was involved in.
- “Linnell’s version is his”, and no meeting took place at the behest of Zuma. Nor was she ever involved in “who to hire and who to fire”.
- She kept a diary and recorded every meeting, but did not have her diary with her.
- Linnell was appointed through the board resolution as the legal advisor, and he is a very straightforward and honest man.
- She met with Linnell whenever she came to Johannesburg because she was the head of the Zuma Foundation.
- There was a person who introduced her to Tsotsi. But she didn’t want to “criminalise” herself by stating his name. She didn’t know why it would be a crime for him to meet with the former president. Zondo told her that the person she is referring to is Jabu Maswanganyi, and that he had been referred by Linnell and Tsotsi.
- Myeni denied that the suspension of Eskom executives was discussed with Zuma.
- Her son drove her to the meeting with Zuma in Durban, this was his role.
Myeni said she was glad she was before the commission to “clarify issues”.
Tsotsi would have abdicated his responsibility if he had approached Zuma, “he would have been undermining the minister”.
Later on she said that “there are no shortcuts in dealing with issues of corporate governance”.