Madlanga Commission | “Scheduling cannot outweigh constitutional rights” — Advocate Ngoato

Defence advocate, Hartley Ngoato, who represents South African Police Service Sergeant, Fannie Nkosi, at the Madlanga Commission has raised concern over what he described as the commission’s urgency to place a new witness on the stand, arguing that it should not override a witness’s constitutional rights.

Nkosi was expected to testify today following three days of testimony by KwaZulu-Natal Hawks head Major-General Lesetja Senona.

Appearing before the commission on behalf of his client, Ngoato said his legal team required additional time to prepare for Nkosi’s hearing and could not be expected to compromise constitutional protections to accommodate the commission’s schedule.

Earlier, Ngoato made the submission during testimony by Crime Intelligence head Lieutenant-General Dumisani Khumalo, who detailed allegations that suspended Deputy National Police Commissioner Lieutenant-General, Shadrack Sibiya, used Sergeant Nkosi to collect cash pay-offs from criminal syndicates and underworld figures.

Advocate Ngoato says the commission cannot expect Nkosi to compromise his rights just to accommodate the commission’s scheduling.

“…now he needs to compromise his right just to accommodate scheduling. Scheduling cannot be as important as three constitutional rights of a person; the right to prepare and the right to a fair trial. Scheduling can never be of such importance. If there is an issue, they must find a way how they rearrange things on his side but not to his prejudice because of scheduling,” Ngoato said.

Ngoato further revealed that police had been in possession of Nkosi’s phones for several months, while his legal team was given fewer than four days to review the extracted data.

“With regard to the 13 files which you referred me to on page 22 on annexure E which was received on the 22nd, here received the USB which he still needs to go and print. The 22nd was last week Thursday. He called my office on the day to make an appointment and unfortunately I couldn’t fulfill that request till Monday,” Ngoato explained.

The defence also pointed to what it described as procedural failures, claiming initial correspondence relating to the matter was sent to the wrong person.

“Commissioner there is an issue here and maybe we need to accept this thing. Maybe the evidence leaders needs to approach the commission with honesty and integrity. The first correspondence that were sent to the client were sent to a wrong person,” Ngoato added.

Ngoato maintained that his team would not be ready to proceed by Monday, citing medical reasons that will prevent consultations with his client over the weekend.

Evidence leader, Advocate Paul Chaskalson, argued that documents and a memory stick had been handed over eight days earlier and warned that a postponement would leave the commission without witnesses for Monday and Tuesday.

Ngoato disputed this, saying the defence received close to 4,800 pages of documentation only on 26 January.

Lead Justice, Mbuyiseli Madlanga, questioned Ngoato’s sense of urgency.

“Mr. Ngoato you are a practitioner, I am sitting with practitioners, I have been a practitioner for many years. We always try if something comes up and something that is quite urgent, we always try to make time. Are you telling me as you are sitting there that you simply cannot make time to attend to this very important national matter, or rather a matter of national importance?” Justice Madlanga asked.

After lengthy exchanges, Justice Madlanga ruled in favour of a postponement.

“After careful consideration, we have taken a decision, and that decision is to postpone. It will not be for as long as Mr Ngoato asked for. The matter is postponed to next Tuesday. The main reason for this is that we do, to an extent, understand the plea that time is required to go through the documentation, and we feel that, in fairness, we should not be too nit-picky about when exactly the documents were received or not received. We therefore decide that, in the circumstances, fairness dictates that we grant the postponement, and that will be until Tuesday, 3 February 2026,” Madlanga said.

The hearing has been postponed to Tuesday, 3 February 2026.

Written by: Odirile Rabalao