Brown Mogotsi’s attempt to have evidence leader advocate Matthew Chaskalson SC recuse himself at the Madlanga Commission is unlikely to succeed.
This is according to legal expert Elton Hart, who deemed Mogotsi’s application a futile exercise.
According to Hart, Mogotsi does not have the authority to dictate who should or should not serve as an evidence leader in the commission of inquiry.
While he notes that it is not unprecedented for another evidence leader to take over, he stressed that it all rests with the commission.
“I don’t think it would be a train smash if Mr Chaskalson is removed as evidence leader that deals specifically with Mr. Mogotsi, because there is more than one evidence leader that we have seen already at the Commission.
“So, it would not be strange to just see another evidence leader coming and taking on from where he left off,” he said.
Hart explains how commissions are not courts of law but rather administrative bodies.
And if there are any adverse findings made against Chaskalson, Mogotsi can take the report or the recommendations made by the Madlanga Commission after its conclusion on review. Mounting challenges from witnesses are putting the Inquiry under strain, with questions being raised about an increasing wave of last-minute sick notes, that force a delay in proceedings.
Much like the move by Mogotsi, Hart believes it could be a tactic to delay the commission despite the tight deadline.
Chaskalson has rejected claims by Brown Mogotsi that he behaved unfairly in his questioning in the hearings.
Chaskalson intends to seek permission from his professional bodies to file an affidavit answering Mogotsi’s allegations.
This was confirmed by Madlanga Commission spokesperson Jeremy Michaels, after Mogotsi, who was scheduled to resume his testimony before the Commission on Tuesday and Wednesday, indicated that he would apply for Chaskalson’s recusal.