Whether it was about fraud being a criminal offence, about her understanding of the Public Finance Management Act (PFMA), or even about her own qualifications, the answers were the same.
“Chairperson, may I please not answer just in case I incriminate myself,” was the refrain of former SAA chairperson Dudu Myeni during her testimony at the state capture commission for most of Wednesday afternoon.
Social media was quick to speculate that, given her consistency in following this answer pattern through, Myeni would probably have given the same answer even if she was asked her name or birth date.
“Adv Hofmeyr must ask her, is your son Talente Myeni ... or is your name Dudu Myeni ... I wanna see something (sic),” one user posted.
For close to half an hour Myeni was simply not interested in answering questions. But evidence leader Adv Kate Hofmeyr was patient with her as she kept firing questions about Myeni’s role in collapsing state airline SAA.
Myeni’s rebellion started right from the beginning of the proceedings.
She said she refused to answer questions relating to the SAA because her answers may be used against her should the NPA pursue criminal proceedings against her.
Before you is a witness who has an axe hanging over her head.
— Dudu Myeni’s lawyer, Adv Thabani Masuku
Her fear, she complained, was motivated by a high court ruling that ordered the NPA to investigate her role at SAA and institute criminal proceedings should it deem it necessary to do so.
“I prefer to invoke the right to remain silent on the matters pertaining to SAA. There is a standing judgment wherein Outa and the pilots’ association wanted me to be declared a delinquent director for the collective decisions of the SAA board, which were put on my shoulders,” said Myeni. “The NPA could possibly charge me based on those decisions.”
Myeni was backed by her legal representative, advocate Thabani Masuku.
“The court directed the NPA to gather all evidence and thereafter decide to charge her. Before you is a witness who has an axe hanging over her head,” said Masuku.
“She is not speaking freely because there is a court order directing the NPA to charge her. She is not saying that she is not going to answer questions. We are not suggesting that there is a blanket right to refuse to answer questions,” he added.
Hofmeyr argued against this, saying only Zondo had the right to assess, in every question, if Myeni qualified to invoke the privilege of not having to incriminate herself.
Said Hofmeyr: “The right to remain silent is a right that accused people have. The right to silence as a consequence does not apply in these proceedings. There is a privilege that applies to these proceedings. Each question will be put to Ms Myeni. If she revokes her privilege, an assessment will be made.”
Zondo ruled: “The position is that you will be asked questions, even on SAA. And in terms of your responses, there may be questions where you may revoke your privilege not to incriminate yourself.
“But the expectation from my side is that there might be other questions I would not expect your privilege to be revoked. From your side, you will protect yourself as you wish.”
Whether Myeni is off the hook for avoiding the questions will be known on Thursday, when she appears before the commission again. Zondo is set to rule on which of the questions do and don’t qualify for her privilege not to self-incriminate.
