Pretoria – At the 11th hour, President Jacob Zuma abandoned a crucial part of his state capture court review which asks for the State of Capture report to be sent back to the public protector for further investigation.

However, the main part of the case in the North Gauteng High Court in Pretoria – to have former public protector Thuli Madonsela’s remedial actions reviewed and set aside – still stands.

In a surprising twist in the matter, which was set down for three days, Zuma’s advocate Ishmael Semenya SC abandoned a part of the Notice of Motion which relates to the remission of the matter back to the office of the public protector for further investigation.

ALSO READ: Public Protector does not have powers to dictate to Zuma, court hears

In the court papers, the relief which was abandoned – which caught the attention of seasoned legal minds, including the full Bench of judges, reads: “Remitting the matter to the second respondent for further investigation.”

Judge President Dunstan Mlambo and High Court Judges Phillip Boruchowitz and Wendy Hughes had to adjourn immediately to discuss the implications which the move had on the application before them.

But not before Steven Budlender, who represents the Democratic Alliance seized the opportunity to request a dismissal of the entire application.

“We have an abandonment in the last minute, literally the last second of my learned friends’ address. This is a fundamental part of the relief…I submit that this demonstrates that the court should dismiss this application as a whole,” he said.

Budlender added the decision to abandon was regrettable.

‘Cynical’ of Zuma

Representing the United Democratic Movement and the Congress of the People, Dali Mpofu, SC, said the decision “threw a spanner in the works”.

The lawyer representing the Economic Freedom Fighters, Tembeka Ncukaitobi, said he was concerned about Zuma’s commitment to establish a judicial commission of inquiry.

Giving his order, Judge President Mlambo gave the respondents until 16:00 on Friday to respond to the legal implications of Zuma’s decision.

READ: Zuma’s integrity under spotlight at state capture review application

Zuma’s legal team was given until next Tuesday to submit arguments on what the move means for the review application.

Commenting on the development, the DA’s James Selfe said it was cynical of Zuma to drop half of his application at the last minute.

“We regard this as the height of cynicism for the president, at the very last minute, to abandon half of his review application.”

‘South Africans need closure’

Selfe said the move was reminiscent of what had happened with the Nkandla saga, “where exactly the same tactics were used”.

“The president ran out of arguments and withdrew at the last minute and we believe that this is cynical beyond description. We hope that the court will take notice that this has wasted our time…and frustrated South Africans.

“It’s now been over a year since the public protector released her report and South Africans now need closure on the matter.”

Selfe said South Africans couldn’t wait for a commission of inquiry to be established that would get to “the bottom of this shameful history of South Africa and hold those responsible accountable”.

Johannesburg – It was another emotional day for the families of Life Esidimeni patients as they testified about their anger following the deaths of their relatives, and the lack of accountability from those to blame.

Lesiba Legwabe, who lost his brother Mothofela, told the arbitration hearings that the process and the government’s apologies were “too little too late”.

He believes that the death of his brother directly contributed to his wife’s death because they were close.

A double loss

“I buried my brother on the 20th of August. I buried my wife in December… Your apology does not go well with me,” he said.

“You didn’t listen to us. It is painful for me… I lost my wife,” he said.

He said he was angered by the former Gauteng Health MEC Qedani Mahlangu’s decision to push ahead with the project to move patients from Life Esidimeni to a number of unlicensed NGOs, despite warnings from the families and advice from Section27.

Seeking the truth

“I hope that one day we will know the truth… [The government] undermined the leadership of Section27 when they were advising them. We shouldn’t have been here in this arbitration,” he said.

On Tuesday, the ANC in Gauteng said it had been in contact with Mahlangu and she had indicated she would be willing to appear before the arbitration hearings.

“She indicated that she does not have any problem to appear but was not on the list of witnesses. She has made contact with the office of the Arbitrator to discuss the logistics of appearing,” Motalatale Modiba said in a statement.

He added that any suggestion that the party was unaware of her whereabouts is incorrect as Mahlangu requested leave from the provincial executive committee at the end of August in order for her to travel overseas to pursue her post graduate studies.

READ: Mahlangu must face Life Esidimeni hearings, say protesters at London School of Economics

Ntombifuthi Dhladhla broke down during her testimony on Tuesday. Her brother Joseph Gumede died after he was moved out of Life Esidimeni and his body spent months in the mortuary at the Mamelodi hospital in Pretoria before his family was contacted.

The hearings had to adjourn to allow Dhladhla time to recover after she broke down while recalling the decomposed state she found her brother in.

“What hurt me the most is I took my brother to a place of safety only to be the one to sign his death certificate,” a sobbing Dhladhla told the hearings.

“I can’t face my family,” she said.

It emerged during her testimony that her brother’s corpse had decomposed to such a state, that his fingerprints couldn’t be taken.

“I’ve never experienced such pain in my life… I thought he was going to be safe where he was. I won’t forgive Qedani Mahlangu. I won’t rest until justice has been done,” an emotional Dhladhla said.

The hearings continue on Thursday.

JOHANNESBURG – A tearful Ntombifuthi Dladla gave a heart wrenching account of how she had to identify his brother’s badly decomposed body, after the family was only notified by the state months after he had died.

Dladla said her brother Joseph Gumede, who she was very close to, died at Anchor Centre, an NGO in Cullinan, Pretoria. She was only informed this year by social worker Daphney Ndhlovu about her brother’s death that took place in July 2016.

”I asked her ‘do you hear what you are saying? Why are you telling me only now?,” she said, before she asked Ndhlovu where the corpse had been stored for over six months.

Ndhlovu told her Gumede’s body was at a government mortuary in Mamelodi. She said she forced Ndhlovu to break the news herself to their mother, who had suffered a stroke due to Gumede’s illness. Her mother did not take the news well and had to be taken to a doctor, she added.

WATCH: Life Esidimeni arbitration continues

Ndhlovu said she took her brother to Esidimeni because he had become aggressive and had broken windows at her mother’s home. He would sometimes disappear from home and roamed the streets for some time, she added.

Dladla said Ndhlovu told her they had to travel to Mamelodi together so that she could identify Gumede’s body.

”It hurt me the way my brother’s body looked like…his body was decomposed and had a bad smell. The morgue was hot, we were requested to wear masks because of the bad smell in there,” Dladla said as she broke down in tears on Tuesday.

She then had to return to the mortuary to take Gumede’s body home. The undertaker did not bring a hearse for the corpse, instead he arrived with his two assistants in a minibus taxi, she added.

”We traveled with my sister, and drove back all the way from Mamelodi to Soweto with my brother’s decomposed body…I wished that the driver would not stop at traffic lights because every time he stopped, flies would pour into the taxi because of the bad smell.”

The worst was not over for the family as they prepared to bury Gumede.

”We left him at the undertaker on Monday. I received a call from the owner on Tuesday requesting me to come to his office. I told her I couldn’t because I was preparing for the burial,” said Dladla.

”He told me it was difficult to clothe my brother’s body as there were maggots coming out of his body. He suggested that we buy blankets so he can wrap his body instead.”

She said regretted taking her brother to Esidimeni after she survived the streets without him being discovered dead by strangers.

”I tried to give my brother a place of safety so that he would not end up dead by the side of the road, but it seemed I signed up death for him. I am even afraid to look my family in the eye because I am the one who took him to Life Esidimeni…it seems I sent him to his death. My brother would disappear but survived the streets as we were able to find him,” she said, sobbing uncontrollably.

When she asked for her brother’s medical file, Ndhlovu told her Gumede was transferred to Pretoria without his medical records.

The arbitration, chaired by former Deputy Chief Justice Dikgang Moseneke, resumes on Thursday. Moseneke is unavailable on Wednesday.

eNCA