After the farce surrounding the South African CRL Commission, its chairman Mosoma is now to be paid millions. If he refuses to pay, legal proceedings will be initiated against him. A letter to this effect from Eberhard Bertelsmann, a former judge at the Supreme Court of Gauteng in Pretoria, has now been served.
In it, Professor David Mosoma is ordered to pay the witnesses represented by Bertelsmann – Martin Frische, Erika Bornman, Peet Botha, Celimpilo Malinga, Koos Greeff, David Engelbrecht, Chantal Engelbrecht and others – their claims within 30 days, otherwise a subpoena will be issued against him and the commission. Mosoma’s term of office has since ended, and his successor has not yet been confirmed. The applicants claim that this makes no legal difference and that ‘the Commission remains the Commission’.
The demand was also delivered to a representative of the speaker of the National Assembly and the parliamentary secretary to inform them of the ‘serious allegations’ against Mosoma and the commission he heads. The commission is constitutionally obliged to inform the National Assembly of its activities, including reporting on useless, wasteful and unauthorised spending, as it did in its investigation, Bertelsmann said.
The move comes after court papers revealed that the commission, which held hearings into allegations of human rights abuses in KwaSizabantu, had been informed by its own legal department that the allegations were outside its mandate. This admission was made by the Commission’s executive director, Tshimangadzo Mafadza, in a sworn statement in response to an application by five witnesses at the Gauteng High Court in Pretoria to review and set aside the report and recommendations. This after the Commission concluded that the teachings, principles and rules of the mission fall within the scope of religious freedom but recommended that KwaSizabantu apologise to its former members for the ‘harm’ caused by its practices. Only then did the Commission affirm that its mandate is limited to protecting and promoting cultural, religious and linguistic rights.
In its letter, Bertelsmann refers to the public outcry and widespread public demands for action after a seven-month investigation by News24 into harrowing allegations of misconduct, physical abuse, sexual assault, rape, child , violation of religious rights, defamation, psychological terror, suppression of freedom of speech and belief, and emotional blackmail and abuse by the leadership and members of the mission against members, parishioners and minors in the parish.
After the publication of the Exodus series – which included allegations of cult-like practices, public beatings of children, and misogynistic oppression of women – Mosoma had condemned the alleged abuses in a ‘self-glorifying manner’ and promised to investigate them in a televised interview on 22 September 2020.
Those invited to testify told their stories in the hope of exposing the abuse, stopping or preventing the suffering of others, and also in the hope of coming to terms with their own injuries and psychological and emotional trauma, Bertelsmann wrote. The commission members who presided over the investigation had repeatedly assured that a genuine, honest and thorough investigation would be carried out, he said.
That is why former members had testified and were forced to face the ‘hostile gaze’ of KwaSizabantu representatives and their lawyers as they relived ‘the pain and horror’ under the glare of publicity and media presence.
Bertelsmann: ‘This was a traumatic experience for them all, which they underwent because of the promise that a lawful, thorough, objective and independent investigation would lead to the abuses at KSB (KwaSizabantu) being uncovered, addressed and remedied.’
But after a long hiatus, the investigation resumed, with the commissioners meeting with the mission representatives ‘in camera, behind closed doors’ at the KwaSizabantu property. ‘The constitutional rights of victims to be present and participate in such hearings were trampled. In doing so, the Commission ignored and violated its own published guidelines for conducting an investigation, which call for transparency and the full participation of all affected parties,’ Bertelsmann said.
No investigation report was provided until his clients threatened a mandamus petition and finally filed it to compel the commission to provide a report. ‘This report was extremely deficient and avoided dealing with the real issues, on the flimsy excuse that no findings could be made regarding abuses that were not admitted or conceded by KSB,’ he said.
Their subsequent application for review was delayed ‘for as long as possible through subterfuge’ on the part of Mosoma and the commission, who ‘at every turn failed to comply with the court’s orders to disclose their documents, file affidavits in a timely manner and to cooperate with the applicants’.
It was only when they were finally forced to make an affidavit that Mafadza’s statement referred to the legal advice given to the commissioners that they lacked the authority, statutory authorisation and thus the legal capacity to conduct the hearings.
‘No witness was made aware of the fact that the Commission lacked authority to conduct the investigation at any point, especially before each witness began testifying. No witness was advised that the Commission would make no findings regarding any alleged wrongdoing if KSB did not admit it. No witness was given the opportunity to consider whether or not to proceed with a futile investigation,’ he said. Each member of the investigation team should have disclosed that they had no mandate and allowed each witness to withdraw in light of this, Bertelsmann argued.
‘By failing to do so, each and every member of the commission, and particularly you as its chair, Professor Mosoma, deliberately violated the psychological and emotional integrity of each witness, knowing full well that each individual who would testify would be forced to relive the horrors they faced,’ he said. ‘Every member knew that each witness would be traumatised and would experience significant emotional, psychological stress and bias.’ In view of the significant stress that these hearings represented for the witnesses, the commission promised continuous psychological support for the witnesses during the hearings, which never materialised, he emphasised. ‘This grossly unlawful conduct was compounded by the publication of a one-sided, superficial and biased report that took the side of KSB and omitted the advice given to the commission before it embarked on the fruitless and useless undertaking that only served to transgress and violate the constitutionally enshrined human rights of the Witnesses,’ Bertelsmann wrote, with his clients only learning of this advice when the CEO made his affidavit in July this year.
According to the letter, the complaint will also be forwarded to the chairperson of Parliament’s standing committee on public accounts.
News24 contacted Mosoma, who confirmed that he was no longer chairing the committee: ‘I don’t have the authority to say anything,’ he said. He referred all queries to the committee. Emails, calls and messages to the committee spokesperson, Mpiyakhe Mkholo, were not answered.