TRC Inquiry: Ngcuka testimony delayed after legal team objects to cross-examination application

The testimony of former the National Director of Public Prosecutions, Bulelani Ngcuka, was delayed on Monday morning after his legal team objected to an application to cross-examine him before the Truth and Reconciliation Committee (TRC) cases commission of inquiry.

The chairperson had earlier authorised the application, brought by attorneys for the Calata family and 24 other families under the commission’s rules. However, Ngcuka’s counsel requested that the directive be reconsidered.

Ngcuka is expected to answer questions about his alleged role in delaying the prosecution of TRC cases during his tenure between 1998 and 2004.

Ngcuka’s lawyer, Advocate Rafik Banna SC, argued that the application was defective, saying the rules allow cross-examination only by implicated persons.

He said Ngcuka’s statement does not implicate the applicants and that they, therefore, lack standing to seek cross-examination as required by the commission’s rules.

“The threshold requirement is not met. You are not told in the application why the other remedies are not sufficient.”

Banna also stressed that there is no automatic right to cross-examine witnesses before the commission and that such permission lies solely within the chairperson’s discretion.

In response, the lawyer representing the Calata group argued that the objection to cross-examination was without merit and advanced arguments for condonation to be granted.

The chairperson, Sisi Khampepe, has ruled to allow Ngcuka to face examination at a later date, while his evidence in chief will proceed on Monday.

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Ngcuka detailed how the lack of resources at the establishment of the NPA in 1998 hampered its ability to focus on cases arising from the TRC process.

he explained that resource constraints limited the NPA’s capacity and forced difficult choices about which matters to prioritise.

As the country’s first head of the NPA, he says his focus had to shift to urgent criminal cases in the Western Cape and KwaZulu-Natal.

He added that in certain instances the evidence was just insufficient to secure a successful prosecution.

“Take for example the Biko case in that case we all knew the police had killed Steve and to go and take those police to court they would have been acquitted.”