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| "Siziwe" a.k.a "Sighs", the self-professed Nelson Mandela Cousin who achieved generalcy and other ranking through adultery/prostitution with at least one Raymond Lentsoe in Year 2000. Goodman Manyanya Phiri, according to Mr Jacob Zuma, must for 11 years now therefore continue to suffer for blowing the whistle against this relative to a Mandela that Zuma calls "The Father of The Nation South Africa". Her official name is Winnie Ntombizodwa Zini-Bobelo |
THE KANGAROO COURT RE-OPENABLE BY VIRTUE OF MISGUIDED HIGH-COURT JUDGE SOUTHWOOD’S ORDER 10 NOVEMBER 2010 ORDER WITH THE HELP OF LINDIWE SISULU WHO COWARDLY DENIED PHIRI HIS RIGHTFUL ACCESS TO STATE FUNDS FOR PAYING HIS FINANCIALLY-STARVED LAWYERS IN THE UNEVEN HIGH-COURT BATTLE WITH HER
PART 2-B
1) This episode concerns sequels to Blogger’s discovery that this particular judge AND ALL THE OTHER ALL-WHITE JUDGES, FOR THAT MATTER (against a black accused Phiri in a black-country South Africa... as indeed the colour "black" exists not among colours of the Rainbow/Nation), were no more conducting their work without fear or favour, preferring rather to be playthings to South Africa’s Mandelasque Thembu-tribalism and similar pro-ethnic-British tribalism in the SANDF, mostly as the poor Afrikaners' means for keeping their jobs: prostituting the ethics of being a real judge! The status quo stands to this day with a Lindiwe Sisulu who is digging her heels where she is supposed to sweep away the whole rot of the previous administrations. If Your Excellency Zuma are not careful even after so many missives directed for your attention, the Department of Defence and Veterans Affairs is destined to be your Achilles heel with this Sisulu character at the helm.
a) Between the transcripts of this post and the those of the previous one, there is a raft of other transcripts deliberately removed from the records by Sisulu’s underhand operatives (chief of whom being Ms Karen Boshoff), transcripts that showed this particular judge (Colonel Lüüs) at his judicious worst in terms of his biased attitude towards The Accused, Phiri, which is why I gave him marching orders.
b) Did Judge Lüüs take the marching orders like a good soldier as given him by the most important person in the trial, the Accused Phiri?
i) Please read the entire post to find out (if every you will within the limited pages of one post)
c) Or did the judge naturally defy the marching orders; did he ignore fairness and freeness of his court, being hell-bent on fulfilling the nefarious intentions against anti-whistleblower-Phiri-on-sex-for-promotion as evidently desired by his supervisors: Director of Judges Ms Annemarie Myburgh, the “Pornocrat”, and her own supervisor-cum-“sweetheart”-cum-Prostitutor, Mr Dunstan Smart, the Adjutant General. Reader of my blog must also find it useful to revert to a previous post “dated 16 December 2010” to see how Judge Lüüs was four months earlier conditioned to bow to the whims of supervisors’ emotional predilections to an accused (Female-Fraudster-Rowena-Moeti-With-a-Rubbing-of-Shoulders-at-High-Places).
d) Whichever way the cookie now crumbles as far back as 2002, it has a direct bearing on Sisulu’s 2011 military legal system and its lawful capability of further prosecuting Phiri because, as reader will see on the transcripts of this post in relation to SANDF military judges bowing to extrajudicial powers of one too many of their corrupt commanders, the prosecutor was to grill Blogger:
i) “So [this thing of saying the judge is biased against you and must go is] only....your belief, not based on substantial facts?......Written proof [we need for it], Colonel [Phiri]!
e) I had watched the antics of the judge during my own trial; but now there is the written proof as desired by the prosecutor: the transcripts of a judge who not only allowed his supervisor (Myburgh) to supervise him too closely; the transcripts of a judge who toed the line (a laughable sentence of R2000) for the salvation of a self-confessed fraudster as a bidding from judge’s supremo (Smart) with questionable character for women and a smart who had done this immoral, unethical and perhaps unlawful task as per request of a general (Petronella Mari) herself at the time not only embroiled in allegations of fraud or related matters, but despite knowing the accused more than any other general for the facts that the two individuals knew each other’s families and belonged to the same South African Medical Health Services Corps”
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((Court re-opens))
COURT CASE OF COLONEL GOODMAN MANYANYA PHIRI COMMENCES ON 10 September 2002
2) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: For practical purposes we are in chambers. We haven't started the court yet and Colonel Simelane and Ms Karen Boshoff are present. Colonel Simelane, you have an application? Please proceed.
3) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Judge, I was wondering whether I can ask Colonel Phiri to be present in court when we ...
4) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, certainly. I'm going to switch off until your client is present. Just a second, please.
Recording machine was switched off)
5) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please be seated, Colonel [Phiri], because your counsel [Simelane] wants to make an application and he requested that you be present to hear the application. Please be seated, so that we can listen to this application. Colonel Simelane, please proceed.
6) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: As the court pleases. Judge, we intend to bring three (3) applications at the commencement of this trial, but the defence is just worried about, say, the sequence that these applications will have to take.
7) The consideration is that they may be done separately, may be done in sequence, or they may be combined.
8) In other words the witness may be in the witness stand to give evidence in respect of the three applications [if they] are separate.
9) Now, the purpose of coming before this court at this point is to enable the court to give directions as to the most convenient manner in which these applications may be brought. The indications, in terms of my instructions, are:
a) To bring an application for recusal of the court, the presiding judge. It will be the first application.
b) The second one will be an application on the question of assessors [or members of the jury] with an objection of [an assessor].
c) This will be a two-pronged application.
i) It's first leg will be that Colonel Phiri as an accused had made a selection in terms of choices of assessors, and that in his view those assessors are selected by him. If available, that selection should be sustained.
ii) The second leg of that application would be that one of the appointed assessors as recommended by the relevant authority on assessors would not be suitable. In other words Colonel Phiri will raise his objections with regard to the assessor who happens not to be the one he has chosen, he will adumbrate as to how he feels that that assessor will be unsuitable for this case.
iii) And then the final application, Judge, would be the application on the question of documents [amongst which be the Mashoala Report] that the defence requires. The defence will also need an order therefore, a determination by the court as to whether those documents are relevant and that those documents are necessary, and that those documents would then need to be furnished....[(to the reader of this post, Blogger's elucidation on the Mashoala character, please check the yellow highlight to be found here)]....
10) NOW, when consulting with Colonel Phiri I said I'm not sure what would be convenient to the court to hear these matters, because then there's this application for recusal. It would probably have been possible to hear all of them, but with this application for recusal, it would appear to me, subject to the views of the court, that maybe that one should take precedence in the sense that if the court should decide to recuse itself, then we will deal with other matters. But if the court decides not to recuse itself then we know for a fact that there's an order that says the court will stand therefore the court can hear other matters, other applications, so I don't know how the court would consider this matter. But as I indicated initially, then we're just looking for directions whether;
a) is the court able to make an order now to say, "I would like to hear all those applications in the same breath notwithstanding the possible implications of the question of an application for recusal in which sense the court may not be competent to hear other matters unless the status of the court is re-determined
b) or the court would like to say, "Okay, I'll make an order after hearing all the applications."
11) That is the kind of direction we're seeking from the court. And this would possibly be by way of an order that the court orders so that these applications will take form such that it would become issues we could refer to later. Indeed, as I understand the directive from Director, Military Judicial Reviews, where Brigadier General Johannes Lodewikus Larney is, there was in another matter which was brought inter- (unclear) ... applications and his office insisted that it be furnished with records in order to ... that those appeals be heard-before-the case is finalised.
12) Now, I have advised Colonel Phiri of that order by Judicial Reviews that therefore, if the orders are adverse, it will not be matters upon which he can seek-appeals at this stage, not until the matter has been finalised.
13) In other words the trial has been disposed of and it becomes a matter for appeal and review to the Court of Military Appeals insofar as General Larney's directions. But ...
14) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Surely we have case law on this matter?
15) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, of course! I'm aware that, Judge, there will be case law and I'm saying this because the order became implementable, the directions of General [Larney] (unclear) ... we were in that matter...not furnished with further records until that matter was disposed of.
16) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes. I think there is case law and you will have to refer me to case law in your application and, at the end of the day, I will have to wait for the other assessor because I put forward we're waiting for the assessor before we commence proceedings now. The assessor, [“Angolan-born, Xhosa-speaking” Lieutenant Colonel Tshabalala]...unfortunately they broke into his house and they're busy with police statements...he's on his way. This matter will stand down for half an hour or an hour, if need be, until this assessor is here and then we'll hear a proper application, starting with the recusal of the judge himself.
a) Thereafter, if I understand you correctly, the [application] is based on two legs.
The first is that The Accused [Goodman Manyanya Phiri] can choose the assessors.
The first is that The Accused [Goodman Manyanya Phiri] can choose the assessors.
i) That is a new dimension, which I'm not aware of. You will have to show it to me in law.
b) And then obviously the one concerned with one of the assessors,
i) I'm not sure which one, and you'll-have to make a proper application.
ii) That assessor will be excused while myself and the other assessor consider the application,
c) And then lastly, the documents are legal aspects pertaining to the constitutional rights and the rights to information, and as well a certain case law, and I will hear a proper application from you on that as well.
17) At this point in time the court will stand down and I will deal with it, starting with the recusal of the judge.
18) So in the meantime prepare your arguments, Colonel Simelane, and then we can proceed with that application as the assessor is available...
19) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Okay. As the court pleases, I.... it's a little....besides....but it's a point relating now to the availability of the defence counsel. I just want to indicate to the judge that my availability for this case, in terms of the authority that has been granted to me, is only for today.
20) The point is, I'm attending a course at the moment: it started last month and this course finishes on 22 November 2002 at the South African Military Health Training Formation. And when I went on this course I discussed with Lieutenant Kruger who is in the defence counsel as a ..
21) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sir, just, tell me, this case has been postponed to a final date today, to start with the state's case, so...
22) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: How are you able to be on a course knowing that you have a case?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: How are you able to be on a course knowing that you have a case?
23) You will have to address me on that issue. I'm not going to hear you now, [maybe later, yes] and then you...can take the matter further [since, in relation to this Phiri case,] this was an order [to] finalise (this case) if need be. [Alternatively, in spite of course, do make a means to]...be available due to putting yourself on course. I would like to hear your reasons. So the court will deal with your applications and then I'll deal with that matter.
24) For the time being, this matter will stand down until the [other] assessor is back. Thank you.
25) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: As the court pleases.
26) PROSECUTION COUNSEL Ms KAREN BOSHOFF: As the court pleases.
(Court adjourns)
(Court 're-opens)
27) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Both assessors are present at this point in time. Before this court case can proceed, and before we read the [South African National Defence Force] Code of Conduct, there was an application this morning on record from Colonel Simelane regarding three aspects. We're going to deal with it one by one. Before we deal with it I would like all members just to be sworn in. At this point in time the court will deal with it in sequential order but before that, the members are to be sworn in. Everybody will stand in court.
(Recording machine was switched off)
28) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Colonel, before we proceed with this case I would like to ask the prosecutor just to put the history of this case regarding the postponements on record. Madam Prosecutor, are you able to do so?
PROSECUTION COUNSEL Ms KAREN BOSHOFF: That's correct, Judge.
PROSECUTION COUNSEL Ms KAREN BOSHOFF: That's correct, Judge.
29) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please proceed, so that the court can just hear what the history of this matter was, with the DD1 please, starting.
30) PROSECUTION COUNSEL Ms KAREN BOSHOFF: As the court pleases, Judge. The DD1 was written out 9 March 2001 where the member was formally charged, Section 29 Appearance on the Directing Staff 19 March 2001 where a recording officer was appointed.
31) Preliminary investigation was finalised 16 March 2001, then the first postponement was on 28 June 2001, postponed to 18 September 20 2001. The third Section 29 matter was postponed again on 18 September 2001 to 26 November 2001. The fourth Section 29 was 26 November 2001 until where the matter was once again postponed to 8 January 2002, and from that period of [Section] 29 Appearance 28 June 2001 the matter was postponed on request from the defence counsel. From 8 January 2002 the matter was postponed to 26 February 2002, then on 26 February 2002, once again the matter was postponed to 24 April 2002.
32) The seventh Section 29 Appearance [occurred] on 26 April 2002 when the matter was postponed to 24 June 2002. The last postponement was on 24 June 2002 till date 10 September 2002 for final remand and for proceeding on the matter. All these postponements were due to the defence counsel's request for postponement and the state, through all these postponements, was ready to proceed.
33) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you, Madam.
34) PROSECUTION Ms KAREN BOSHOFF: If it pleases the court.
35) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Colonel Simelane, you have certain concerns, please address them on record regarding starting off, I would recommend, with the recusal of the judge himself. What's your factual basis for that?
36) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Judge, before I address the court on the recusal of the judge I would like to make a comment on what my learned friend has [just] said.
37) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, certainly.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Judge, as far as the defence is concerned we would like to place on record that those postponements, which are alleged to have been the result of a request by the defence...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Judge, as far as the defence is concerned we would like to place on record that those postponements, which are alleged to have been the result of a request by the defence...
38) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry. May I interrupt you, and just ask for courtesy that your client [Phiri] be seated because it's going to be long proceedings I presume, and it's unfair to him to be standing at this stage. Colonel Phiri, please be seated.
39) ACCUSED GOODMAN MANYANYA PHIRI: Thank you, Judge.
40) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you. Please proceed.
41) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. Thank you, Judge. Briefly, the point I'm making, Judge, is that the postponements to the extent that some of them are referred to as postponements as a result of a request by the defence, those postponements, for clarity and for the benefit of members that were not present in this court, were to get certain documents, which will arise in that application that we're going to make. These documents should have been provided by the prosecution, and these documents are documents that are necessary for the defence to prepare its case and therefore for the trial. The prosecution failed to provide these documents and, in fact, on 26 November 2001..... prosecution gave the indication that the defence counsel must utilise the Information Act for that purpose. Following upon that directive by prosecution we pursued the line of the Information Act until very recently on 20 August [2001?] when we got a final decision as a determination of an internal appeal, which Colonel Phiri had made. The determination being that the prosecution must provide us with those documents. In short, Judge, and honourable members of this court, we are saying those delays were not dilatory and were not caused by the defence counsel or the defence. We are purely they are purely matters that are required to assist the trial. That's my point.
42) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you, but, Counsel, we still need to hear you on your first application, please.
43) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: As the court pleases. On the first application, Judge, we will ... the defence will ask Colonel Phiri to give evidence, and that he should get into the witness stand and take the oath.
44) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Regarding, so to speak, a trial within a trial, if I understand you correctly?
45) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, he will give evidence as to why he wants the court to recuse himself, and ...
46) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Well, I'm not sure about the procedure. Can you just elaborate on the procedure because if I understand it correctly, it's normally an application from the bench, and it's normally pertaining to the rules, and the rules you know. So the basis for the recusal is set out in the rules. Tell me where I can go beyond those boundaries [of] "Objections to Departmental Judges and Assessors, Rule 36 read with Rule 35." Tell me where you see this that your client can give evidence.
47) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I will answer the court in two ways.
a) One, this is, to the defence...it's a common-law right to give evidence in order that the matter may be determined. One, defence counsel can argue from the bar if he so wishes, or he can call evidence, like even in bail applications you can ... one can from the bar argue a bail application, or one can call an accused to give evidence, and over and above that evidence, argue on the point. The objections are no different, that is trite.
b) Secondly, with regard to Military Rules 36(3) "Where The Accused objects to be tried by a particular judge or assessor, the judge or assessor in question shall withdraw while the objections concerned are being determined and the remaining judges shall thereupon hear the objection and any arguments or evidence ... any arguments or evidence that may be advanced or tendered in support of or against the objection."
i) In this case, if this suffices, Judge, we elect first to give evidence by The Accused and thereafter sum up by way of a brief argument if that will suit the court.
48) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Well, obviously what I've asked is not your interpretation of 36(3). I understand 36(3) quite well.
a) The point is: in law, before you make an application you lay a basis, a foundation, and your foundation should be based on logical legal principles and case law.
b) Now, I'm asking you, on what basis do you bring this application before I hear your client [Phiri]? Argue the law for me please, before I consider whether I'm going to hear your client because he's not a legal person, and his concerns will be addressed at the right time, we're still busy with the legal process and I would like you to convince this court of what the factual grounds are, what the legal grounds are, and then the court will proceed to your client.
49) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: With respect, that is a misdirection, Judge. With greatest respect that you would like to hear me on the law without hearing me on the facts and evidence if that evidence is available. It's like, as I say, it's like putting the cart before the horse because I have to apply the law to the facts if these are put, and if the facts are not before the court I can give a statement of indication, a precursor, a statement that would...it's just a statement.
a) Usually statements are a question of elections before the commencement of any trial there's an election whether we want to make a statement indicating how we want to go about with our case, what the court may expect.
b) If the court ... (unclear) sort it out from me, I can give an indication as to possible grounds, but obviously the grounds will come firmly from The Accused [Phiri], because I [Simelane] am not making a recusal. I'm representing somebody [Phiri] and it is that [Phiri] who wants the court to be recused, it is not Colonel Simelane who's [mere] defence counsel.
c) I only act on instructions, but if the court wants an indication from defence counsel as to the line of reasons that would be advanced by his client I would gladly do that.
50) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Well, obviously as I stated, in law, you have to lay the foundation before the court can consider allowing proceedings that are not reflected in case law or in the statute itself.
a) Coming to your point, first and foremost, the common-law right, surely common law applies where statute does not apply?
b) If it's by definition set out in statute, then the statute applies. You know that rule as well.
51) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, if the court indicates the statutes he's using for this particular event, if you can quote me the statute that the court is referring to.
52) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Rule 36, Rule 35 read with 20(9), so [sic] the court, or Section 20(9) in the new amendment... in the Rules and Amendment, so what. I'm asking is, where is case law?
53) Starting off we're not going to get involved in the documentation that you requested. I'll deal with that when and if we get to that stage.
54) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: . (unclear) with your recusal, Judge?.
55) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, why I said I do not wish to get down into that; but I would like case law as well on that point when we do get to it, because as far as the court knows your request for information, the Information Act is there. The Constitution is there, but I have yet to come across case law where the information requested that was not provided, has subsequently influenced the merits of the case.
a) And there [sic] I've got case law as well and I'll deal with it. Now I'm getting to this point and I would like to keep it in separate compartments because we'll deal with the application for documentation in a proper fashion. This starting point, recusal for the judge cannot come out of nothing, there has to be substantial reasons for...that. There has to be substantial facts provided, the case law is reflected at least in two constitutional court cases and they gave the guidelines, now I would like to know why should I start off differing from those guidelines.
56) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Judge, the court is talking about all the criminal cases. The point is, Judge, which has not been mentioned and made available, what we're talking about, Judge, we made an application for directions specifically to want to know how these applications are to be brought. And as I understand it the court made an order here, this morning, that these applications should be heard separately, starting with (1) the application for the recusal of the judge. That would be the first application, and I understood, in terms of that order, that that application will be heard and disposed of, then after that the court will hear an application for objections on the question of assessors. We indicated the length and breadth of the objection, how it would go about then the court said, "Okay, fine, once that is disposed of, the court will then look into an application on the question of documents. That's how .....
57) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Counsel, it's a very simple question.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Let's not make it intricate. What cases in the constitutional court deal with the application for judicial recusal? There are two pertinent cases, what cases deal with it? Because there, the proper approach has been dealt with, and I'm asking you as a legal person what are those cases, and what is the approach?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Let's not make it intricate. What cases in the constitutional court deal with the application for judicial recusal? There are two pertinent cases, what cases deal with it? Because there, the proper approach has been dealt with, and I'm asking you as a legal person what are those cases, and what is the approach?
58) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I don't ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: When you come to court, you should know what the law is.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I don't know what the court intends to derive that there are cases in the constitutional court, of course there are cases that dealt with recusal. There was a long argument and what has it got to do with this, what we want to put substantively. Judge, we want to give evidence. .. (unclear) ... went into the stand and gave all the reasons, which he wanted the judge, the honourable court to recuse himself, substantively he gave evidence. I'm saying this accused [Phiri] seeks to give evidence before the court. What is the problem there, Judge?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: When you come to court, you should know what the law is.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I don't know what the court intends to derive that there are cases in the constitutional court, of course there are cases that dealt with recusal. There was a long argument and what has it got to do with this, what we want to put substantively. Judge, we want to give evidence. .. (unclear) ... went into the stand and gave all the reasons, which he wanted the judge, the honourable court to recuse himself, substantively he gave evidence. I'm saying this accused [Phiri] seeks to give evidence before the court. What is the problem there, Judge?
59) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'm asking you, on what legal basis should I allow your client to give his opinion before I get to that, what is the proper approach? It's a simple question.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No. Judge, it's not the right wording, “his opinion". He's going to give evidence. That is the key word that is being used. The Accused [Phiri] wants to give evidence,....you can't judge what he hasn't said whether it is an opinion or not.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No. Judge, it's not the right wording, “his opinion". He's going to give evidence. That is the key word that is being used. The Accused [Phiri] wants to give evidence,....you can't judge what he hasn't said whether it is an opinion or not.
60) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: We haven't come to that stage. We haven't made a finding. I'm asking you what is the legal basis, before we commence
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: There are no opinions have been rendered by you.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: There are no opinions have been rendered by you.
61) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Before we commence....
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No opinions have been rendered by the Judge. At this point no opinions have been rendered by the judge. Phiri only seeks to give evidence...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay, but ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: ...to the reason why the court must recuse itself.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'll ... I've asked you a simple question and you haven't dealt with it. The simple question was, what procedure entitles me to do so, except the interpretation, your interpretation I might add, of 36(3)?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: It's not my ... I can read what ... verbatim what the rule says, not what Simelane interprets. I'm...it's straight English, "Thereupon hear the objection and any argument or evidence". No interpretation is required.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No opinions have been rendered by the Judge. At this point no opinions have been rendered by the judge. Phiri only seeks to give evidence...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay, but ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: ...to the reason why the court must recuse itself.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'll ... I've asked you a simple question and you haven't dealt with it. The simple question was, what procedure entitles me to do so, except the interpretation, your interpretation I might add, of 36(3)?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: It's not my ... I can read what ... verbatim what the rule says, not what Simelane interprets. I'm...it's straight English, "Thereupon hear the objection and any argument or evidence". No interpretation is required.
62) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you. So let's proceed. I'll hear proper legal argument from you at a later stage I presume?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: As the court pleases.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: As the court pleases.
a) APPLICATION FOR RECUSAL OF JUDGE HENDRIK JOHANNES LÜÜS
63) WITNESS NUMBER 1 : : LIEUTENANT COLONEL GOODMAN MANYANYA PHIRI (Hereinafter referred to as "ACCUSED") GIVES EVIDENCE UNDER OATH
64) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Are you comfortable if proceed in English today, Sir, or do you need an interpreter?
65) ACCUSED GOODMAN MANYANYA PHIRI: I'm comfortable with English, Judge.
66) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you. If at any stage you are uncomfortable, notify your counsel please so that we can make the necessary arrangements. It's very important that you are able to put yourself across in the language in which you are comfortable, so that there's no problem in that regard.
a) Colonel Simelane ... you may be seated, Sir, and speak into the microphone. Colonel Simelane, your witness.
67) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: As the court pleases.
a) EXAMINATION IN CHIEF:
68) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Colonel Phiri, do you want to make an application that the court recuses itself?
69) ACCUSED GOODMAN MANYANYA PHIRI: Yes, indeed, .. Counsel.
70) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Could you please give your evidence as to the grounds upon which you seek the court to recuse itself?
71) ACCUSED GOODMAN MANYANYA PHIRI: As it so pleases the court. I've had several appearances since [charges were laid against me] last year [with] those appearances of course taking place in this court, and it is my understanding that on every one of those appearances there had been one duly qualified judge as part of the court that presided over those appearances.
a) And on each and every one of those appearances, for whatever reason that was put forward, the rationale for further postponements, it is my belief and trust, that the judge of the day, if I could put it that way, listened to arguments from both sides of [counsels defence and prosecution] and [thus] came to a decision, based on the result of such arguments.
b) And for me the last appearance that I made prior to this one, of course, was 24 June [2002]. If my memory serves me well.
c) For the judge, irrespective of the position the particular judge [holds] in relation to other judges...for that particular judge of the 24th to make a ruling that, in my eye, tended to disregard all the rationale, [disregard] all the reasoning, [disregard] all the conclusions that had been reached in [previous] appearances by other judges, that gave me the impression that the particular judge, in this case Colonel Lüüs, had personalised the whole issue by the mere fact of disregarding the previous judge's viewpoints.
i) That [was] my first reasoning here.
ii) My second point, why I would like to have the judge recused rests on the very attitude of the judge when I appeared last time.
d) I have no idea what had transpired, --and by talking of any transpiration I'm actually jumping the gun to point Number 3 here, but I have no idea....for the second point what had transpired prior to my marching into court on the 24th June [2002], ....and so as to evince [so much emotionality on] the part of the judge, when I was addressed in respect the appearance that is being heard today the 10th [September 2002], whereby the judge issued the words (or words to that effect)."whether Phiri’s prepared or not prepared, he will be tried on the 10th September 2002; whether Phiri has or not the documents he requires as per his previous request for clarification of charges, Phiri is getting tried on the 10th September 2002 even whether Phiri’s defence counsel is prepared or not.
e) Those words were so confrontational to me that I actually resorted to writing a grievance about it.......
f) [Judge, to listen to such comments from the bench without a challenge, I have been] subjected to countless [acts of] mistreatment. ...People..thought they have a right to find me guilty even before I'm heard by the court.
g) [But] for the judge to act and speak the way he did,...it rankled in my mind that it's part and parcel of the victimisation that I'm facing outside at the hands of [prejudicial] senior generals of the ... [SANDF] especially [those of its most important of divisions], the [South African] Army [Division].
h) I was convinced, and it still remains my conviction, that there could be some, with due respect to the judge, [subjected to] some invisible ropes that could be manipulating [them politically or militarily], hence the behaviour of the judge. That is the conviction that I reached. And like I say I even wrote a redress about that issue, coupled with the other [acts of] victimisation that I'm suffering
i) ...[The redress I wrote was in fact] a letter written...to the State President [Zuma Predecessor His Excellency Thabo Mvuyelwa Mbeki] because even the Minister of Defence [Lindiwe Sisulu predecessor Mosiuoa Lekota] had a personal hand in making my victimization a reality.
j) Now, the third point then, which I’ve alluded to on my second point, had to do with the general mistrust, for a start, that [any accused] in the military [in this country] tends to have where defence counsels of the military are appointed in the sense that the viewpoint that is held...... [is synonymous to the the]..directive of the institution.
k) As The Accused there is no wat for you to be sure that your defence counsel does your bidding, except to be there most, if not all of the time.
l) He [holds] discourse with the court, with the prosecution, et cetera. And for the appearance of the 24th June 2002 that there was more time spent between....the judge [and my Defence Counsel to the extent that] I don't know really what transpired [with] my defence counsel in my absence [for], let me say 20 to 30 minutes.... For me it did create a lot of suspicion that either my defence counsel is being brow- beaten... and forced to accept positions that I never instructed him.
m) And my instructions to my defence counsel are very clear. And, if it pleases the court, I can just summarise them
i) what my intention is in this ensuing court battle, it is to expose the favouritism that is taking place, especially in the army, insofar as [the regime of meting out] discipline, whereby soldiers, and especially officers are not disciplined as per their offences, but they [get] disciplined as per, put bluntly, the former force where they come from [or the influential political leadership they hold as relatives] This is why .. . (unclear) ... I instructed [my Defence Counsel Simelane] when I wanted him to cover my case, and I want this court trial to expose that...I instructed him, amongst other things, also to ...point out that.... [what] I'm going through is a form of victimisation [due to] my outspokenness and my boldness, when things go wrong...
n) For that reasons, Judge, to sum up: for [my Defence Counsel] now to end up being on his own, and basically fighting a battle for about 20 to 30 minutes on 24 June 2002 when I was outside, I am the owner of this battle. I own this battle. I'm ready to stand to even the highest court in the land if need be, to defend my position.
o) What I've said [is] what I've done. Now, for [my defence counsel in my shoes] to fight [my war] I felt it was unfair, and I thought the judge personally did something which was uncalled for, especially when you look [at] what the previous judges had done, whereby they had, as I said when I started, Judge, had conversation with both prosecution and defence counsel and there was a coming together of [the] minds.
p) ...I do not know if I'll be open to questions, or if Colonel Simelane wants perhaps to jog my memory where I might have forgotten something, but that is the ambit of my request.
72) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you. But it's obviously in the hands of your counsel. Colonel Simelane, please continue if you have any further questions to put to your client.
73) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. Who is this [judge] in particular, just for the record, against whom you have written this redress of wrongs, and against whom are you unhappy with him conducting your trial?
74) ACCUSED GOODMAN MANYANYA PHIRI: It is Colonel [Hendrik Johannes] Lüüs, the presiding judge at the moment.
75) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: That is the evidence, Judge.
76) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you.
a) Madam Prosecutor, any examination?
77) PROSECUTION COUNSEL Ms KAREN BOSHOFF: As it pleases the court, Judge.
CROSS-EXAMINATION:
78) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Colonel [Goodman Manyanya Phiri], on 24 June [2002]...was this the only time that you appeared before the said judge in court?
79) ACCUSED GOODMAN MANYANYA PHIRI: If my memory serves me well, it wasn’t for the first time.
80) PROSECUTION COUNSEL Ms KAREN BOSHOFF: For the first time?
ACCUSED GOODMAN MANYANYA PHIRI: No, no.
ACCUSED GOODMAN MANYANYA PHIRI: No, no.
81) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Not for the first time?
ACCUSED GOODMAN MANYANYA PHIRI: It wasn't.
ACCUSED GOODMAN MANYANYA PHIRI: It wasn't.
82) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Okay. Colonel, on the ... if I can refer you back, you appeared on 28 June 2001 before the said judge where the case was remanded to 18 September 2001. Would you remind yourself of something like that?
83) ACCUSED GOODMAN MANYANYA PHIRI: Yeah, I think that's a fair way to put it.
PROSECUTION COUNSEL Ms KAREN BOSHOFF: Were there any problems from the said judge to postpone the matter?
PROSECUTION COUNSEL Ms KAREN BOSHOFF: Were there any problems from the said judge to postpone the matter?
84) ACCUSED GOODMAN MANYANYA PHIRI: If, by your question you are putting in, or reading in that it was the same judge who was postponing the matter, I would respond not to my awareness that there was a problem in the way that he handled the matter. In fact the only problem, and the only time I faced the problem was on 24 June 2002 but I want to add something which I think has eluded the court here, and with due respect as well to my defence counsel I don't want to antagonise myself with him. I think there's a lot of misleading that is going on here about postponements. That includes the postponements Madam Prosecutor is referring to. Formal charges, Madam Prosecutor, you will bear with me, were only handed to me, and this if my memory serves me well, was ± November 2002, that was when formal charges were handed to me.
85) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Okay, Colonel, can we just stick to the postponements here. Thank you, Colonel.
ACCUSED GOODMAN MANYANYA PHIRI: I am actually laying the ground of the postponement, Ma'am,
ACCUSED GOODMAN MANYANYA PHIRI: I am actually laying the ground of the postponement, Ma'am,
86) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Okay, I just must ... my only question to you was, were there any problems ...
ACCUSED GOODMAN MANYANYA PHIRI: Well, let me answer that directly. Can I answer that directly then without any laying grounds, because you're not interested in grounds, but—what I’m trying to say here is the court has all along...been hearing evidence that all postponements were due to [Phiri’s] request for documents, and personally I think- it's not true because the other postponements, including those ones you are referring to, Madam Prosecutor, that you correctly say I had no problems with the same judge, they had nothing to do with my request for documents...Thank you.
ACCUSED GOODMAN MANYANYA PHIRI: Well, let me answer that directly. Can I answer that directly then without any laying grounds, because you're not interested in grounds, but—what I’m trying to say here is the court has all along...been hearing evidence that all postponements were due to [Phiri’s] request for documents, and personally I think- it's not true because the other postponements, including those ones you are referring to, Madam Prosecutor, that you correctly say I had no problems with the same judge, they had nothing to do with my request for documents...Thank you.
87) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Thank you, Colonel. Colonel,. you also appeared before the same judge on 26 February 2002, if you could recollect your memory again where a ...postponement was further given to you to 26 April 2002 by the same judge without any problems in granting you this postponement. You recall that, Colonel?
88) ACCUSED GOODMAN MANYANYA PHIRI: Yeah. Obviously my reading is it's because at that stage Judge Hendrik Johannes Lüüs had not yet discovered...that the documents I'm requesting [among others the Mashoala investigations, the Eddie-Drost Commander’s Investigation] are actually, for lack of a better word, self-incriminating to the state witnesses who falsely charged me as a means, as far as I'm concerned, to victimise me. And when they discovered that then they put the pressure to bear on the judge, hence he ended up acting the way he did [when he did].
PROSECUTION COUNSEL Ms KAREN BOSHOFF: Colonel, [are] there any grounds that you believe that there is animosity from the side of the judge towards your case, the facts of your case?
ACCUSED GOODMAN MANYANYA PHIRI: I'm not so sure about the facts of my case because I don't think we've arrived there as yet. Perhaps if you clarify "facts of my case."
PROSECUTION COUNSEL Ms KAREN BOSHOFF: Colonel, [are] there any grounds that you believe that there is animosity from the side of the judge towards your case, the facts of your case?
ACCUSED GOODMAN MANYANYA PHIRI: I'm not so sure about the facts of my case because I don't think we've arrived there as yet. Perhaps if you clarify "facts of my case."
89) PROSECUTION COUNSEL Ms KAREN BOSHOFF: So, do you agree with me that the judge will not have, at this stage, any facts regarding your case?
ACCUSED GOODMAN MANYANYA PHIRI: I wouldn't know. I have a good suspicion he does.
PROSECUTION COUNSEL Ms KAREN BOSHOFF: You've got a suspicion?
ACCUSED GOODMAN MANYANYA PHIRI: He does, considering like I said earlier on, that there's a lot of political pressure that is put to bear on my case. There's a lot of victimisation, and I could actually put it to this court: I'm not allowed to do courses. My life has come to a standstill because they say I must carry on with the case first before they promote me, and the Minister of Defence himself personally has interfered negatively in my case, now I've written to the President [of the Republic of South Africa] for that very reason. So who is a poor judge? Sorry to say that, but I think he is, compared to the big guns here, he's a small fish! So I believe pressure is being brought to bear on him.
ACCUSED GOODMAN MANYANYA PHIRI: I wouldn't know. I have a good suspicion he does.
PROSECUTION COUNSEL Ms KAREN BOSHOFF: You've got a suspicion?
ACCUSED GOODMAN MANYANYA PHIRI: He does, considering like I said earlier on, that there's a lot of political pressure that is put to bear on my case. There's a lot of victimisation, and I could actually put it to this court: I'm not allowed to do courses. My life has come to a standstill because they say I must carry on with the case first before they promote me, and the Minister of Defence himself personally has interfered negatively in my case, now I've written to the President [of the Republic of South Africa] for that very reason. So who is a poor judge? Sorry to say that, but I think he is, compared to the big guns here, he's a small fish! So I believe pressure is being brought to bear on him.
90) PROSECUTION COUNSEL Ms KAREN BOSHOFF: So that's only on your belief, not based on substantial facts?
91) ACCUSED GOODMAN MANYANYA PHIRI: Well, I’m suffering, Madam, so it’s very substantial. I know indeed what “substantial” is.
92) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Written proof, Colonel [Phiri]
93) ACCUSED GOODMAN MANYANYA PHIRI: Written, from whom?
94) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Colonel [Phiri], is there...when you stated that your defence had discussions in court without your being present, am I correct that you gave a mandate to your defence counsel to act on your behalf? Is that correct?
95) ACCUSED GOODMAN MANYANYA PHIRI: I don't know how to define that mandate, because if you are going to say "mandate," I might as well stay at home today and [let Colonel Bhekumndeni Qedusizi Penuel Simelane do] everything for the trial [in my absence]. But I think the fact that I'm here (participating, hearing arguments, etc) is one of my rights for a justice... [that must be]seen to be done.
96) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Okay. Do you believe that he will act in your interest, Colonel, your defence counsel?
97) ACCUSED GOODMAN MANYANYA PHIRI: I want to make sure. I've raised, Madam Prosecutor, the general . . perhaps it's a misconception but we're talking about careers of people here, that defence counsels of [Mbeki’s] SANDF... well the jury's still out on them, whether they can actually [stand their own ground when both government officials particularly their own commanding generals order “make a short shrift of Accused so-and-so”]. I've raised that [issue] earlier on.
98) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Thank you. No further questions, Judge.
99) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Re-examination?
100) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No re-examination, Judge.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you.
QUESTIONS BY THE COURT:
101) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Colonel, you have to understand that your perceptions, and the court is sitting with the predicament, and I will try and avoid that predicament because irrelevant [though is] the way Colonel Simelane chooses to present his application, the court has to make a finding.
102) And the way he chose to make this application might involve certain problems, one of them is the fact that there might be contempt of court, but the court is stating as a possibility it is a [mere] concern [at the moment]....
103) Secondly, there is also the more really substantial problem in that the court has to clarify certain issues because your perception is based on, to a large extent, what transpired between you and Colonel Simelane, because as you stated on the 24-" you were not there, he related certain information and your perception arose from that information. The court cannot get involved in an attorney/client relationship, or enquire substantially in that regard, and that is a predicament. So if you...the end result is that you have certain suspicions, as you put it, or perceptions that might be the case, the court's hands are bound in certain parameters not to enquire into it, because I cannot enquire into the client/attorney relationship. You understand that?
104) ACCUSED GOODMAN MANYANYA PHIRI: Yes, I do, yes. [Blogger: “I do indeed, but the matter is not lying there, Sir, where you are now catching straws on legalese... the matter is lying with your habitual clutching on the skirts of a ‘pornocrat’ Myburgh and then you make godly statements like ‘whether Phiri or Simelane is ready or not on a particular day I will go on with the trial; the matter lies with your bowing to the pressures of ‘prostitutor’ Smart when he suggests ‘give a lenient sentence to a female fraud convict in your own court’ who, because of hobnobbing with Sisulu’s generalissimo has to escape the full might of the law... so where are your ethics as a judge, Sir, if indeed you still proudly call yourself a judge operating without fear or favour?”]
105) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Now, just to get back to certain aspects, I would like to try and avoid this attorney/client relationship. Let's start with the redress of wrongs, normally the redress of wrongs, my understanding is it should be for information for the person concerned as well, nothing..has reached me. (your friends in Sisulu’s corrupt system may have protected your “innocence” and thus not given you your copy, but, rest assured, this blog will reach you, Papa!) You, [Phiri], have formulated it. Was I notified of this redress of wrongs? Because leave the redress of wrongs and the substance just for the moment, I'm more concerned about a collateral matter, which relevant now, and that is the fact that I might have been prejudiced towards you. If I was in a position to have a redress of wrongs against me, this is something, which I don't even know about, and I would like to clarify the issue whether this was addressed to myself as well.
106) ACCUSED GOODMAN MANYANYA PHIRI: Yeah, it is indeed, but then General Myburgh has said you are the presiding judge, you ought not to read it, so it was a bit strange to me to hear that too.
107) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: No, I think that is a good point from a judicial point of view. The fact of the matter is that I should become involved in cases like that, and there I'll give an explanation to you, hopefully that you can understand as well, but I'll get to that stage. All that I want to know is this was not addressed to myself? You understand that?
108) ACCUSED GOODMAN MANYANYA PHIRI: It was, Judge. I personally addressed it to yourself and formally sent it to yourself as well.
109) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay. I haven't received it. (Blogger: But I’ve just explained you couldn’t have received it, Malleable and Unprincipled Sisulu-Mbeki-Mandela’s Military Judge, when your supervisory Myburgh who breathes down your neck all the time ordered you shouldn’t)) I can put [it] on record, that all that I did receive is a letter by Colonel Simelane himself, in his own capacity, dated 20 August 2002 addressed to The Accused, myself, [and to] the Minister on an administrative level, and I'll deal with that as well. Is that the one you're referring to?
110) ACCUSED GOODMAN MANYANYA PHIRI: Yes, I take it Colonel Simelane's writing you're referring to was the execution [part] of the requests I made in that redress of wrong letter?
111) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: May I just show it to you? Read it
112) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay. Keep it with you, paragraph 2 states, and I read it into the record, we will have it as 30 Annexure "A". Let's mark it Annexure "A". "It would .appear that Colonel Luus is already privy to the prosecution case." In other words, one of your concerns today is that I might have knowledge;-on a question by the prosecution as well, but what it states here is that, "It would appear that Colonel Lüüs already has information of this case," which are very hard words. And I think that's where my concern is, regarding a contempt of court, because there is no factual basis to substantiate that. In your own writing in paragraph 2, it does not set out reasons why this is the allegation then it jumps to the following words, "Worse still and to confirm this reasonable suspicion", now this "reasonable suspicion" should be objectively evaluated, there being no factual basis for that first presumption that was stated. "To confirm this reasonable suspicion he uttered the following words, 'when this matter comes up on 10 September 2002 this court will proceed with your trial'" and then there's a word lacking, "with or without your defence counsel." In other words, after hearing, as you stated, for 20 to 30 minutes another reason for postponement and the case law referred to, and the criminal acts that were referred to, and the reasons, those are legal reasons. I'm not going to get involved on it, in an argument with you, these words were uttered not towards you but it stays that you have a duty to help your counsel to prepare the case, that's why three months were given to give you sufficient time to come to court, to be prepared. Now, I will deal with Colonel Simelane, I will get to that. The point is the context of these words, "When this matter comes up on 10- September 2002 this court will proceed with your trial, with or without your defence counsel", there is no logical explanation why this sentence just before that should be "Is already privy to the prosecution case" because no factual grounds link these two utterances in logical terms- -You-understand my concern?
113) ACCUSED GOODMAN MANYANYA PHIRI: I understand your reasoning, Judge, and if you so allow me; "I will respond.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please do. I would like to hear it.
ACCUSED GOODMAN MANYANYA PHIRI: Judge, first point out of two, it is my understanding that all the postponements that have been done since my request for documents, ± September 2002, were done by the court, for one and only one reason, to await those documents to be granted as the agreement acquiesced to by the presiding, respective judges, acquiesce to from what emanated from both defence and prosecution counsel, and we've got written records to that effect. That is the first point I would like to highlight. And I believe, on that very first point, if it was to the awareness, or knowledge of the court that as it seems to be now since 24 June that those documents are irrelevant. Why wasn't I told last year? Why torture me with waiting and applications, sleepless nights, abandoning my work applying for those documents, if suddenly on the 24th the presiding judge will just make that finding? That is the basis on which I feel there is animosity because my understanding was that postponements are for these documents, and as long as the documents are not being supplied, this should not be put as an onus on me. It's an onus on the state, it's the state that charged me, and all I'm saying, I need clarification. Without the jumping into the details trial, Judge, I will give an example. I was on a course, on every single day, especially towards the closure of the course when I was actually charged .
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please do. I would like to hear it.
ACCUSED GOODMAN MANYANYA PHIRI: Judge, first point out of two, it is my understanding that all the postponements that have been done since my request for documents, ± September 2002, were done by the court, for one and only one reason, to await those documents to be granted as the agreement acquiesced to by the presiding, respective judges, acquiesce to from what emanated from both defence and prosecution counsel, and we've got written records to that effect. That is the first point I would like to highlight. And I believe, on that very first point, if it was to the awareness, or knowledge of the court that as it seems to be now since 24 June that those documents are irrelevant. Why wasn't I told last year? Why torture me with waiting and applications, sleepless nights, abandoning my work applying for those documents, if suddenly on the 24th the presiding judge will just make that finding? That is the basis on which I feel there is animosity because my understanding was that postponements are for these documents, and as long as the documents are not being supplied, this should not be put as an onus on me. It's an onus on the state, it's the state that charged me, and all I'm saying, I need clarification. Without the jumping into the details trial, Judge, I will give an example. I was on a course, on every single day, especially towards the closure of the course when I was actually charged .
114) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay. Sir, you're wandering off from the... it's a simple question I've asked you.
ACCUSED GOODMAN MANYANYA PHIRI: I'm trying just to make it clear, Judge, that I would like please.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Well, I would like to ask it again because it seems that you don't understand it.
ACCUSED GOODMAN MANYANYA PHIRI: Judge, I think there is a precedent here,- with due respect.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sir, just listen to me. The question was not about the documents. Not what your perception was on the 24th - We'll get to the document stage. It's the third, category, your learned counsel has indicated to the court, the question was pertaining to your concern in this letter, which was drafted by Colonel Simelane, "the reasoning" and you'd addressed me on previous occurrences. From that I could read that there had been, I want to stress for the records here, I could only read it from the way you appeared, from the tone and the words you issued, that there had been some ... for lack of a better word, friction while I was outside.
ACCUSED GOODMAN MANYANYA PHIRI: I'm trying just to make it clear, Judge, that I would like please.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Well, I would like to ask it again because it seems that you don't understand it.
ACCUSED GOODMAN MANYANYA PHIRI: Judge, I think there is a precedent here,- with due respect.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sir, just listen to me. The question was not about the documents. Not what your perception was on the 24th - We'll get to the document stage. It's the third, category, your learned counsel has indicated to the court, the question was pertaining to your concern in this letter, which was drafted by Colonel Simelane, "the reasoning" and you'd addressed me on previous occurrences. From that I could read that there had been, I want to stress for the records here, I could only read it from the way you appeared, from the tone and the words you issued, that there had been some ... for lack of a better word, friction while I was outside.
115) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: relevant... Interesting. Were you dealt with, at all times, courteously?
116) ACCUSED GOODMAN MANYANYA PHIRI: Very courteously, Judge. And I'm saying this now for the second or third time, never before in my appearances had I been treated like I was treated on the 24th.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: And your concerns pertain to this line, this sole "When this matter comes up on 10 September 2002, this court will proceed with your trial with or without your defence counsel", if I understand you correctly?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: And your concerns pertain to this line, this sole "When this matter comes up on 10 September 2002, this court will proceed with your trial with or without your defence counsel", if I understand you correctly?
117) ACCUSED GOODMAN MANYANYA PHIRI: Not just the line, also the manner in which it was said, also, as I said earlier, the fact that there was more time spent in arguments in my absence, and I don't know what arguments were taking place. And I .
118) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, but that's my predicament as well because I cannot get involved in that, because you have privileged rights regarding you and your counsel. and I cannot get involved whether he related, what he related, what the factual status is and regarding the law. You understand? So I cannot go into that.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I can assist the court by telling the court what I told Colonel Phiri, that among. other things
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: his right, because as defence counsle you not don't have the election to decide for your client what he's going to divulge to the court or not.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I can assist the court by telling the court what I told Colonel Phiri, that among. other things
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: his right, because as defence counsle you not don't have the election to decide for your client what he's going to divulge to the court or not.
19) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Okay, if he doesn't want me Io do that he will let me know, but as I ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Do you need a short consultation to establish what he's going to allow this court to hear, or not?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I'll be pleased then if the ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Is that not be the more appropriate way?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No, not necessarily because I have a full mandate when there's conflict on, you'll never resolve this point.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Obviously I know what I told him ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Let's hear it in argument then.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Do you need a short consultation to establish what he's going to allow this court to hear, or not?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I'll be pleased then if the ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Is that not be the more appropriate way?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No, not necessarily because I have a full mandate when there's conflict on, you'll never resolve this point.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Obviously I know what I told him ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Let's hear it in argument then.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
120) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Because once again this not the stage. Thank you. Colonel, you are also concerned about the invisible lines, political, military connected to the separate aspects where there's a separate prosecution, separate defence, separate bench. That is your concern. There was a constitutional court case on this. I think your learned counsel will address it to you. The court is not going to deal with it. It's called [Potsane Case]. But for the time being, we'll keep a record regarding the documents, we'll get to that. Can you, obviously the documents will be dealt with if we do get to that argument, but I do not want to step off this point. And you said you had a reasonable suspicion and you divulged on the documents, let's forget the documents. Do you have any other grounds beside that?
ACCUSED GOODMAN MANYANYA PHIRI: No, Judge.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay. Thank. you__ Any questions arising out of the court's questions from the defence side?
ACCUSED GOODMAN MANYANYA PHIRI: No, Judge.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay. Thank. you__ Any questions arising out of the court's questions from the defence side?
121) QUESTIONS ARISING. FROM QUESTIONS BY THE COURT:
122) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Colonel Phiri, you said when you came to the court you saw blood running- out from the forehead of, the judge, was it today .or the 24th?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry. I think the word was not "blood". It was blushing. In other words, there's a slight difference. Blood would be injury normally, and blushing would be high pressure or something, temperament.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry. I think the word was not "blood". It was blushing. In other words, there's a slight difference. Blood would be injury normally, and blushing would be high pressure or something, temperament.
123) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Temperament. Is that what you saw?
ACCUSED GOODMAN MANYANYA PHIRI: Defence Counsel, if you're asking about the particular dates, I'm referring to 24 June here.
ACCUSED GOODMAN MANYANYA PHIRI: Defence Counsel, if you're asking about the particular dates, I'm referring to 24 June here.
124) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Okay, no further questions.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you. Prosecution, do you have any questions arising out of the court's questions?
PROSECUTION COUNSEL Ms KAREN BOSHOFF: None, thank you, Judge.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I would like to just consult with my assessors whether they've got any questions. Thank you. Thank you, by the full Colonel on my right-hand side, no questions.
Thank you. By the Lieutenant Colonel, no questions. Thank you. Please be seated next to your counsel. At this point in time I would like legal argument on this application please. Please proceed when you're ready ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Okay. As the court pleases.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you. Prosecution, do you have any questions arising out of the court's questions?
PROSECUTION COUNSEL Ms KAREN BOSHOFF: None, thank you, Judge.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I would like to just consult with my assessors whether they've got any questions. Thank you. Thank you, by the full Colonel on my right-hand side, no questions.
Thank you. By the Lieutenant Colonel, no questions. Thank you. Please be seated next to your counsel. At this point in time I would like legal argument on this application please. Please proceed when you're ready ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Okay. As the court pleases.
125) ADDRESS ON JUDGE'S RECUSAL BY DEFENCE
126) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Judge, I'll be very brief in this argument. Happily the law is settled on this question as the court initially mentioned that the criminal court has dealt with recusal and the law is clear.
127) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Which law are you referring to, and which cases are you referring to?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Sorry. I'm referring in particular to the SARVU case where the question of recusal was dealt with at length.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Sorry. I'm referring in particular to the SARVU case where the question of recusal was dealt with at length.
128) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: What were the end results and the findings in that case?' Can you just put it on record?
129) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Well, the court refused to recuse itself because, .. as . I . understood the judgement, Mr Luyt was merely talking on questions of association, not to matters relating to the case. He was talking of associations of certain judges with people outside the context of the case. In private situations where, for example, the ... (unclear) ... court would go for dinner at President Mandela's place, the then President, and have lunch there and we'd like to say by virtue of the President having had lunch at Mandela's place he . the President was biased.
130) Those kind of things. These are completely different from what Colonel Phiri has raised. I want to say, in short, Judge, what Colonel Phiri has raised are in fact grounds found on the statute here, Section 20 (9). Here that he had sort to elaborate on particularly three grounds, which as understand his evidence, he was more on the line to establish that it's right that the judge has a personal interest in the matter. Secondly, he tried very hard for the court, to this court to grapple with the fact that the judge sought to be recused to be biased in the matter. And that he sought to establish also that the ground the judge has personal knowledge, obviously by way of reason institutional bias that his case,,,, is so intricate. Has gone to the President in terms of hierarchy then to the Minister as a second layer, and that to use his words, that to the effect that obviously the ... (unclear) ... judge is very junior in that hierarchy would be affected. With respect now I'm submitting here, Judge, that the evidence indicates strongly the judge would have got this from the manner in which the witness testified, the word of conviction he carried across to this court to say "I can't make it any harder. I'm not happy with the present judge presiding over my case.
131) There was a conviction oozing from the witness himself, Colonel Phiri, that he has very strong reservations for the various reasons he has mentioned, some of which are institutional that obviously then he will pity you if the elephants are fighting obviously the ants would coincidentally die in the process. Secondly, Judge, with respect I want to say that on these events of the 24th, they go beyond suspicion. They go beyond perception, and in my respectful submission they are concrete. You would need a man, if defence counsel were, for some reason, (unclear) .. and were to be faced with such a submission I would say, "Thank you, Lord, I want to be away out of this. If I've got to try a person who is so strongly holding these views against me, I would not wish to preside in such a matter." And I'm submitting with respect that the events he mentioned for the 24th, the events, which would be borne by the record, the court will probably be aware that the defence counsel has applied for the record, the transcript of the 24th, and happily the court has not denied those averments, and in fact has corrected the tvoing error where the court says "with or without", which does not appear clearly on this letter. This was purely a typing error, but those were words uttered by the court and those are words that are on record, and these are concrete words.
132) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry. Let's just correct it as you along. I don't want to ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: . impose on your though: pattern but the court never dealt with the request for. transcription and the court's position is not to deal with transcription issues.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. The defence May have misunderstood me, it's not the court that asked for the transcription. The transcription has been requested by the defence 30 counsel. A letter ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Not to the court?..That's-what I'm trying
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: transcribers.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: . impose on your though: pattern but the court never dealt with the request for. transcription and the court's position is not to deal with transcription issues.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. The defence May have misunderstood me, it's not the court that asked for the transcription. The transcription has been requested by the defence 30 counsel. A letter ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Not to the court?..That's-what I'm trying
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: transcribers.
133) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Not to the court..to the respective... Thank you. Please proceed.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: ... and they've responded accordingly that as soon as payment has been done ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: The court would not know about it.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, the court would not know ... the court would not have not known, I was just thinking the exchange of correspondence, because that letter where I'm requesting for that transcription it was ... I hope it was copied to your division, Appellate Division at Thaba Tshwane and Maybe for your attention as well it will ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please proceed.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: So, the ... basically what I'm saying there, Judge, is that those are concrete facts now issued. We just when that record is available we will bear the facts that in the light of the witness' explanation that this was too great a somersault in him, this is the rationale that it was too big a change when he had, from last year, been clearly under the impression that those records are necessary and required for him to prepare for his defence, to clarify the charges. These are all constitutional rights. All constitution rights we're talking about a fair trial, with respect, Judge, just for easy reference and to
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: ... and they've responded accordingly that as soon as payment has been done ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: The court would not know about it.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, the court would not know ... the court would not have not known, I was just thinking the exchange of correspondence, because that letter where I'm requesting for that transcription it was ... I hope it was copied to your division, Appellate Division at Thaba Tshwane and Maybe for your attention as well it will ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please proceed.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: So, the ... basically what I'm saying there, Judge, is that those are concrete facts now issued. We just when that record is available we will bear the facts that in the light of the witness' explanation that this was too great a somersault in him, this is the rationale that it was too big a change when he had, from last year, been clearly under the impression that those records are necessary and required for him to prepare for his defence, to clarify the charges. These are all constitutional rights. All constitution rights we're talking about a fair trial, with respect, Judge, just for easy reference and to
134) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry. While you're on constitutional rights, just
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: let's deal with this point. Is it not so that outside counsel would be paid per day so they would not elaborate on processes that will give so many postponements because their client would be paying for all. these postponements (1), so the law of paying your attorney or your counsel would—stop any outside person going into one ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: .(unclear)
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: after another postponement on these aspects? And secondly, is it not then a concern ... I will ask you to answer that first and then the second concern is that my problem is that, Colonel Simelane, you're on record as well with other cases in this court and it appears to be a pattern developing? Is it not a concern that-this court can objectively see that this is the type of behaviour that we're starting one case after another not reaching the plea stage over numerous months even years?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: let's deal with this point. Is it not so that outside counsel would be paid per day so they would not elaborate on processes that will give so many postponements because their client would be paying for all. these postponements (1), so the law of paying your attorney or your counsel would—stop any outside person going into one ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: .(unclear)
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: after another postponement on these aspects? And secondly, is it not then a concern ... I will ask you to answer that first and then the second concern is that my problem is that, Colonel Simelane, you're on record as well with other cases in this court and it appears to be a pattern developing? Is it not a concern that-this court can objectively see that this is the type of behaviour that we're starting one case after another not reaching the plea stage over numerous months even years?
135) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: The court must have done a serious injustice to the present accused, Colonel Phiri. If I ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I haven't made a finding. I'm asking you a question, Sir.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: If those utterances were made on the basis that we have misconceptions about his defence counsel in other cases, you know ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: No, I'm concerned because we're already over years with this case and we haven't reached any plea once again, and there's case 108/2000 on -record about this type of behaviour. Now, May I ask you, in all fairness, can you explain, yourself,?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I haven't made a finding. I'm asking you a question, Sir.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: If those utterances were made on the basis that we have misconceptions about his defence counsel in other cases, you know ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: No, I'm concerned because we're already over years with this case and we haven't reached any plea once again, and there's case 108/2000 on -record about this type of behaviour. Now, May I ask you, in all fairness, can you explain, yourself,?
136) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I don't know really what have to explain because, Judge, if I have to explain why this case is commencing on 10 September instead of the previous dates, obviously the explanation I can give ... I will give is that insofar as it relates to the records that we wanted, they have not been produced. We have gone from prosecution counsel ... prosecution counsel in November 2002 prosecution says "Use the Information Act." It doesn't say ... she doesn't say, "those records are not necessary. It is appreciated." She has applied to get those documents but has not succeeded, because defence counsel was made ... put under the impression that .
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: deal with the documents at' suitable time, Sir. Do you understand my question?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: You want an explanation, Judge. What is clear and what you want to know why the case didn't start... all the time, is that ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: deal with the documents at' suitable time, Sir. Do you understand my question?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: You want an explanation, Judge. What is clear and what you want to know why the case didn't start... all the time, is that ...
137) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you, Sir, please proceed.-
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, that's why the case didn't start. Judge, when you interrupted me I was on the constitution. I was on the question of fair trial. I picked out the constitution to try and get the relevant section, which would have indicated that what the Colonel Phiri requires is in fact a matter of constitutional imperative in order to reach this fair trial, the constitution in these stages.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, that's why the case didn't start. Judge, when you interrupted me I was on the constitution. I was on the question of fair trial. I picked out the constitution to try and get the relevant section, which would have indicated that what the Colonel Phiri requires is in fact a matter of constitutional imperative in order to reach this fair trial, the constitution in these stages.
138) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please proceed. I'm listening.
139) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. My argument, Judge, was on the substantive connection between the documents sought in terms of the constitution and the averment of the judge on 24 November when the judge in the eyes of Colonel Phiri somersaulted. When Colonel Phiri was under the rationale, the view that all along now the documents are to be required, to be furnished and therefore submits to get it through the avenue as indicated on 24 June 2002, the judge said, "with or without ... the case will Proceed on 10 September." My purpose of that ... my arguments now on the question of fair trial and relating to those documents I'm saying, Judge, those documents are a constitutional requirement of Colonel Phiri, to have. I'm referring now to Section 25(3)(a) and (b) thereof, which reads: "Every accused person has a right to a fair trial, which include the right (a) to be informed of the charge with sufficient details ... (unclear) 088 (b) to have adequate time and facilities to prepare a defence." I'm therefore saying, Judge,
140) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sir, sorry before you. step off that point I would like to hear you on the relevant case law on this point.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Judge, with respect there is a (unclear) you shouldn't be ... (unclear) . of case law, but if it's for interest sake you have the trouble against this ... (unclear) ... the constitutional court was saying on the documents, which you would need for a trial should be made available even the dockets. That is usually called a docket case that even the prosecution should make, she should open this docket and have given The Accused all the relevant dockets ... (unclear) ..
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Judge, with respect there is a (unclear) you shouldn't be ... (unclear) . of case law, but if it's for interest sake you have the trouble against this ... (unclear) ... the constitutional court was saying on the documents, which you would need for a trial should be made available even the dockets. That is usually called a docket case that even the prosecution should make, she should open this docket and have given The Accused all the relevant dockets ... (unclear) ..
141) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: You're referring to Tshabalala's case?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: The Tshabalala's case is there, but the ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: What did Tshabalala's case say?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: But here's a document, Judge, I'm talking about the constitution.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'll get to that. We're not dealing with in prematurely, we'll get to that application, Sir.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL:
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Mm. But just for the record, what did Tshabalala's case say?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Tshabalala's, it's a well-known docket case stating that The Accused will have all the information, which the police would have in the docket ..."
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: That's not what Tshabalala's case said.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Oh, your interpretation is not their interpretation but it what to say ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: The Tshabalala's case is there, but the ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: What did Tshabalala's case say?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: But here's a document, Judge, I'm talking about the constitution.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'll get to that. We're not dealing with in prematurely, we'll get to that application, Sir.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL:
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Mm. But just for the record, what did Tshabalala's case say?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Tshabalala's, it's a well-known docket case stating that The Accused will have all the information, which the police would have in the docket ..."
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: That's not what Tshabalala's case said.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Oh, your interpretation is not their interpretation but it what to say ...
142) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Was it not so that they precluded certain divisions?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I'm not talking about what was stated here. I'm talking about the documents which he wants, unless you want to say those documents, for some reason is precluded with ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay. Please proceed. We'll deal with documents at the right stage. I will hear you on that.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, yes, at..a later stage, yes. Yeah.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please continue. Your application in this regard is still, if I have to remind you, the request for recusal of myself,
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. I'm on your recusal, Judge. I'm saying it would be a very, very difficult person, a person who has already made a frame of mind who would want to decide a case when there's been a strong submission, submission with conviction that the person must recuse himself, who would then decide to say, "Nonetheless, whatever the consequences, I'm going to take this case." I'm saying it needs a man from somewhere else.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I'm not talking about what was stated here. I'm talking about the documents which he wants, unless you want to say those documents, for some reason is precluded with ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay. Please proceed. We'll deal with documents at the right stage. I will hear you on that.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, yes, at..a later stage, yes. Yeah.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please continue. Your application in this regard is still, if I have to remind you, the request for recusal of myself,
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. I'm on your recusal, Judge. I'm saying it would be a very, very difficult person, a person who has already made a frame of mind who would want to decide a case when there's been a strong submission, submission with conviction that the person must recuse himself, who would then decide to say, "Nonetheless, whatever the consequences, I'm going to take this case." I'm saying it needs a man from somewhere else.
143) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you, Sir. That might be subjective, I'm asking on a legal ground that you address me on the cases because you refer to ... (unclear) .. case. There's also the Sukabo case and I'll deal with unreported cases as well, but there's a double reasonableness criteria in that case. Can you address me on a double reasonable criteria?
144) (Blogger COMMENNT: As with the rest of these transcripts, there are innumerable blotches of poor quality over and above deliberately-skipped whole episodes and pages where Sisulu’s Army’s legal system turned-by-her-to-a-kangaroocourt. In this particular instance, there is a total loss in the train of thought between Judge and Defence Counsel, the reader must just tolerate this)
145) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL:....it's free to do that. I'm currently addressing the court on the question of the connection between those documents, linking them to the statement of 24 July. This was evidence by the witness that the ... (unclear). ... was so close and that the change of circumstances, call it the rationale, as to had so changed that along, from last year being under the things in fact these documents, which all to use the witness's words [form a lasting] impression that these documents are required and that he's been caused sleeplessness nights, that strenuous efforts had been made to get it, and all of a sudden on the 24th, "Whether those documents are there or not, whether the defence counsel is there or not, the case will proceed." I'm saying that statement threw away the constitutional rights of Colonel Phiri. I've read those rights to the court, 35(3)(a) and (b), they have been read. It should be on record. I'm proceeding in the contents of recusal, those, in terms of law, as given by constitution and in terms of statues ...
146) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry, not according to law given by the constitutional courts - they've stated, and let me put it on record, if you didn't read the cases properly I would like to ask you to do so, but they stated that, "It's not the subjective interpretation of the person regarding that" it's objective criterions.
147) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Precisely, it's the correct reading, Judge, I'm on objective issues now. What I'm talking about when you say "Concrete" that the events of the 24th have . (unclear) ... We've got a record there. It's not subjective. The record is an objective document. If this is postponed until that record is available the court will deal with an objective concrete object before it, not subjective, repeating the words of the court.
148) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay, now getting to the objective criteria then, tell me how your client got from the reasoning objectively regarding postponement that he had to be ready? That he also said that I have insight into the prosecution's case, objectively speaking please. Not subjectively, because you have established now that the.. criteria according to the constitutional court cases, objective.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. Okay. I'll go with- the court now because I'm basically abandoning this argument, which I was ..... working on in terms of ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. Okay. I'll go with- the court now because I'm basically abandoning this argument, which I was ..... working on in terms of ...
149) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please don't.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: . the bias, and of the court in terms of its recusal and the ... (unclear) ... it will take the court time for me to come back and lay this foundation again to come and make the point, but now the court wants me to address it on something else. I'll ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: No, please don't abandon your argument.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'll sit here the whole day if need be,
to hear your argument because I'm concerned about this 10 issue, ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Oh!
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: ... it might be contempt of court
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Okay. I won't get back on the personal interest if ... (unclear) ... referred to them. You want me to finish that one?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, please.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: . the bias, and of the court in terms of its recusal and the ... (unclear) ... it will take the court time for me to come back and lay this foundation again to come and make the point, but now the court wants me to address it on something else. I'll ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: No, please don't abandon your argument.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'll sit here the whole day if need be,
to hear your argument because I'm concerned about this 10 issue, ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Oh!
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: ... it might be contempt of court
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Okay. I won't get back on the personal interest if ... (unclear) ... referred to them. You want me to finish that one?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, please.
150) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Okay. So ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please, we don't want to 'hamper'? you.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Thanks. Okay. Thank you. What I must now add that the judge has clarified that point nicely that in fact we're dealing with objective issues.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry. This is not my judgement. You understand that?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: That is the constitutional court case ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, it's constitutional court matter .
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: ... In SARVU and in Sukavo?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Please, we don't want to 'hamper'? you.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Thanks. Okay. Thank you. What I must now add that the judge has clarified that point nicely that in fact we're dealing with objective issues.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry. This is not my judgement. You understand that?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: That is the constitutional court case ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, it's constitutional court matter .
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: ... In SARVU and in Sukavo?
151) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. Thanks, Judge. What I'm saying there is that by making that objective thing, for reasoning and the judge was really making what I was trying to make that objectively speaking and—objectively viewed the .........reasonable man looking at those events of 24 June 2002 and reading those documents, an objective. person-would see that there is a biased judge. There is a biased judge there. HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Based on what?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: The fact of the 24th, Judge, are known to this court, it's a question of the statements now court made.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: The fact of the 24th, Judge, are known to this court, it's a question of the statements now court made.
152) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry. Just bring it in relation to my concern, and if you can hear my concern that I gave you three months to be ready for trial. Objectively I said, "This is the final postponement, be ready. If you are not ready then obviously the court will have to look into this matter seriously" because the court already put all the case law, all the relevant sections in the Criminal Procedure Act on record at that stage. So that one line cannot be seen in isolation. It has to be read with the relevant case law. It has to be read with statute. It has to be read with what is the practice in outside courts as well. The point is I would still like to hear you and do not misunderstand me please, there's a difference between your client being honest in his belief, and regarding material aspects, this one line, which is subjective and secondly the legal criteria that it had to be reasonable, which is objective. But I think I've given you enough guidance, so please address 7-7,, now properly.
153) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. Judge, I can see that I'm getting a wall here. Judge, that line is not in isolation. The line is not isolation. The judge should remember that when that case on the 24th was being postponed for that three months, as the court just correctly pointed out, the court should remember a fundamental thing linked to that, that matters were not in the hands of the defence. Were not in the hands of Colonel Phiri, because if the waiting could be as long as more than three months ... (unclear) ... because if those documents are not there, those necessary documents that are required ...
154) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Would that sorry, Sir, and I'm not going to interrupt you again. I'll try my best, but you're wandering off on a very important issue. Would that not have been reason to address a new postponement instead of....
155) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: ....is not in his hands. He's not pulling around, or avoiding a trial. In fact he's eager, like everybody else, that this matter be disposed of. He has already told the court in evidence that he's not going to cause his ... he's not been promoted, so it is a matter that he would like to get over and done with as soon as possible. He would like to get it behind him and over with. There is no reason why we could delay the trial and finalisation of this matter for any one day, Judge, the constitution is complied with and we provided, documents. It has, numerous times, during those previously explained to this court the relevance of the document. It ... that if ... that that ideal report is required. The matter was investigated officially, the matter of the junior staff course at the army college ... (unclear) the time .. (unclear) ... The Accused made written submissions in the part of the support that report insofar as the charges are concerned would be relevant. The Accused has been charged of being 20 absent from place of work, those registers are required. Now, if those things were, to be made available they would help to clarify the charges (1) 35(3)(a). They would help to clarify the charges (2) .. I'm talking about the constitution's 35(3)(b), they-would enable Colonel Phiri to prepare for his defence. These are all fundamental rights enshrined in the constitution. Now, I'm saying on ..
156) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry, what is the case about? start with the case. I'm not even sure what the charges are against your client. Objectively speaking, what is the. 30 case about?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Which case, Judge?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE:' This case of Colonel Phiri, what is it about?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: The case ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: How many charges? BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: About seven, Judge.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Pertaining to what? BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: They pertain to events at the army college.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: What are the allegations?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: When he attended the junior command and staff course.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Which case, Judge?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE:' This case of Colonel Phiri, what is it about?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: The case ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: How many charges? BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: About seven, Judge.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Pertaining to what? BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: They pertain to events at the army college.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: What are the allegations?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: When he attended the junior command and staff course.
157) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yeah, but what are the allegations in the seven charges? What does it constitute about? I don't want to get down ... I just want to know whether it's AWOL, 10 or whether it's fraud or whether it's what?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No, it's ... you know there was a so- called incidence of racism and the markings. You there were differences when they were arguing [in relation to marks allocated in particular or corrupt] way, which could be read with section, it could be racism, sexual favours and those kind of things.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, let's forget about racism .
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Now, .
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: at this point in time. I'm asking you a simple question.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: What are the charges against him?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Well, the charges arising from there is that some of his superiors are not happy about allegations, and they're saying (unclear) those subordinate.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No, it's ... you know there was a so- called incidence of racism and the markings. You there were differences when they were arguing [in relation to marks allocated in particular or corrupt] way, which could be read with section, it could be racism, sexual favours and those kind of things.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, let's forget about racism .
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Now, .
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: at this point in time. I'm asking you a simple question.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: What are the charges against him?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Well, the charges arising from there is that some of his superiors are not happy about allegations, and they're saying (unclear) those subordinate.
158) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Insubordination? Is that the charges?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Of course, ja,
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay. Insubordination?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, arising from saying that sexual favours had been granted against . (unclear)* ... student, so many marks here, they . (unclear) ... negotiate the marks ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: But insubordination surely is a matter for evidence, or not?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, that's what I'm saying therefore, Judge, that that whole incident of that junior command and staff course, racism, insubordination and what have you was officially investigated by the IG, he took statements on the issue who wanted. Now, Colonel Phiri even wrote down and said "Mr IG, here are my submissions". find the sub.... and that culminated in an official report, Judge, in an official report into those matters and now that report by the Inspector General is very relevant in those circumstances, when one talks about racism, one talks about marks being granted between the pillows to say one would, as I say,
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Of course, ja,
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay. Insubordination?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, arising from saying that sexual favours had been granted against . (unclear)* ... student, so many marks here, they . (unclear) ... negotiate the marks ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: But insubordination surely is a matter for evidence, or not?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, that's what I'm saying therefore, Judge, that that whole incident of that junior command and staff course, racism, insubordination and what have you was officially investigated by the IG, he took statements on the issue who wanted. Now, Colonel Phiri even wrote down and said "Mr IG, here are my submissions". find the sub.... and that culminated in an official report, Judge, in an official report into those matters and now that report by the Inspector General is very relevant in those circumstances, when one talks about racism, one talks about marks being granted between the pillows to say one would, as I say,
159) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Let's just analyse what you're saying.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: One is being subordinate.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I would like to understand your way of reasoning.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Let's analyse what you're saying. If there was an investigation that would have been administratively, it's not a judicial investigation.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: It but it's an official investigation.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'm not asking you a difficult question, Colonel.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: One is being subordinate.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I would like to understand your way of reasoning.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Let's analyse what you're saying. If there was an investigation that would have been administratively, it's not a judicial investigation.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: It but it's an official investigation.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'm not asking you a difficult question, Colonel.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
160) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'm asking you a very simple question.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Mm.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Do you agree that it's an administrative official investigation?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, it was not a
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: It's not a judicial
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: . Yes: No. ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: investigation.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, it was an officer of the SANDF.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I think it was a Mashoala who's an Inspector General of the army who investigated that and he submitted the documents on that investigation. Over all these incidents .. (unclear) ... it will take about three or four (unclear) ... charges on those matters. And ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Mm.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Do you agree that it's an administrative official investigation?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, it was not a
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: It's not a judicial
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: . Yes: No. ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: investigation.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, it was an officer of the SANDF.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I think it was a Mashoala who's an Inspector General of the army who investigated that and he submitted the documents on that investigation. Over all these incidents .. (unclear) ... it will take about three or four (unclear) ... charges on those matters. And ...
161) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: So whatever opinion is formed in that final verdict of that investigation should not be in a position to override, or influence even, the court's objective evaluation of facts in front of this court. You agree with that?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Precisely. If that Inspector General report, if report on the facts of it the court will be dealing with the documents, and if it is his evidence in relation to a document, which would then support it, obviously the court will consider seriously what he says on those issues.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, but you can ask that in _c;-(s- examination to that witness.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I don't have those documents. I don't have the Inspector General documents.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Then you can ask him to provide that document and if need be the court can compel him to provide 20 that document ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Oh!
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: if it's relevant to if, for example, I'm walking across now ... BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Precisely. If that Inspector General report, if report on the facts of it the court will be dealing with the documents, and if it is his evidence in relation to a document, which would then support it, obviously the court will consider seriously what he says on those issues.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, but you can ask that in _c;-(s- examination to that witness.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I don't have those documents. I don't have the Inspector General documents.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Then you can ask him to provide that document and if need be the court can compel him to provide 20 that document ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Oh!
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: if it's relevant to if, for example, I'm walking across now ... BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
162) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: . in legal terms, if that witness is, first and foremost if it's relevant, secondly whether cross-examination on that point covers those aspects then obviously one can deal with it. So what is your concern precisely? But my, concern is that you're saying that the judicial observation during the trial, and conclusions surely should not be subordinate to a document?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL:
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: No. It's only a factor that the court will consider during the trial, not so?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. (unclear) . Judge. Judge, with respect, you know the IG was intervening, investigating, collecting facts. The facts, which would be, if it's an official document, an official version of the facts and we are going to argue on those facts here again when the court would have had the benefit of an official version of the facts we would know that we would go this far ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'm still I still don't understand what your reasoning is, but please proceed.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, the point I was therefore making, Judge, if now I remember correctly there is that all what I've made here is that now that Inspector General report would assist the (unclear) ... foundation of certain charges. It would be documentary . (unclear) available for the prosecution, for the defence counsel to the extent that it will help them, but it's the documents under issue. The question- of registers, other charges, about five to seven, dealing with absence from work and things, and those charges would need then the Attendance Registers. We will need to know that the circumstances of his attendance are. And, Judge, to assist you there if I May, these documents were never in dispute as to their necessity for the purpose of the trial. This is ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL:
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: No. It's only a factor that the court will consider during the trial, not so?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. (unclear) . Judge. Judge, with respect, you know the IG was intervening, investigating, collecting facts. The facts, which would be, if it's an official document, an official version of the facts and we are going to argue on those facts here again when the court would have had the benefit of an official version of the facts we would know that we would go this far ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: I'm still I still don't understand what your reasoning is, but please proceed.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, the point I was therefore making, Judge, if now I remember correctly there is that all what I've made here is that now that Inspector General report would assist the (unclear) ... foundation of certain charges. It would be documentary . (unclear) available for the prosecution, for the defence counsel to the extent that it will help them, but it's the documents under issue. The question- of registers, other charges, about five to seven, dealing with absence from work and things, and those charges would need then the Attendance Registers. We will need to know that the circumstances of his attendance are. And, Judge, to assist you there if I May, these documents were never in dispute as to their necessity for the purpose of the trial. This is ...
163) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay, let's deal with documents. understand your reasoning
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: at the beginning, at that stage, you're still confusing the issue.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL:
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: at the beginning, at that stage, you're still confusing the issue.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL:
164) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: this stage. BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, they ... We're about recusal of myself still at Yes, that's why therefore if the court is happy that there was no dispute therefore; that in fact November when the prosecution counsel said, "Look/ my 35 endeavours have failed to get these documents, try to use the Information Act," we're being assisted. Now, the relevance here now is that if Colonel Phiri was from . was then, all along from last year under the impression that we are in ad idem prosecution and the court, it was the same court today in which ... (unclear) ...
165) If we were of the same mind then that these documents are required, why then did the judge on 24 June then change and say ...concern is and this is why I've asked you in detail about the documents now. The concern is that you could have been ready for trial because the documents are, if I understand you correctly, relevant, to (a) your submission, (b) that it is necessary for purposes of cross-examination, (c) obviously for purposes of preparation. But if that witness would come forward hypothetically to the court and he does not want to divulge that information, surely then it will affect his credibility and surely the defence will have no problem in neutralising that witness, so the fact of the matter is, you could have started with the case. You reached that stage where you wanted a cross-examination: that specific matter, remembering my concern now because an administrative enquiry might be relevant, court would not be bound by an administrative finding because the court has to objectively make a judicial finding based on all the facts before him, so the court would say, Yes- hypothetically that it's relevant and you would need it for purposes of your cross-examination, and we'll deal with the documents just now, but the fact of the matter is it should not have taken a couple of months just to get these documents in your possession. So, you utilised the Information Act and you only recently got an answer from that.
166) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes. .... the judge should not now really ... these are not matters of speculation, Judge. Before defence counsel was instructed to represent Colonel .... Phiri, and there was made at that level, Colonel Phiri himself had written to the Chief of the Army and to the Inspector General asking for these records, so if that is the attitude of the higher echelons of the army to treat him like that, when would these documents come about? It's clear they don't want to give him those records. I tried, ... here is Ms Karen Boshoff, prosecution counsel I asked her, "Please get those records." She failed. They wrote to us, Colonel Botha, late November and said "Try the Information Act, it could do something." We went to the Information Act, we tried and appealed. The argument being that now the trial has commenced. I was .. defence counsel was trying to say we had not yet pleaded, but she has written a long letter here, it's available for the court.
167) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes, but let me refer you, before ... don't want to get bogged down into collateral. matters at this stage. We're still going to deal with the documents. It's the case of S v Friedland and Others 1996'1) SALR 114, Witwatersrand, where they stated: BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: 1996(1)?
168) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: 1996(1) SALR 114, Witwatersrand, where the honourable judge stated in that matter: "The counsel could give no reasons case law and he specifically asked for case law regarding if the.-..." ... exactly your circumstances now: "if the defence had applied for certain further particulars or documentation and it was not provided, why? That would influence. .the case .because once a -case- commen... the merits of the case commence, the court has to deal with it as the court proceeds, and it's then relevant, the court will have to stand' down and order that person to come forward. But to make an out an argument that the case can be delayed, delayed, delayed without starting the case is not the right projection." And this case frequently dealt with it.
169) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Can I pose a question, Judge? A simple question. Have, in this case, any merits of the case been looked at, to your knowledge?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: In ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: In this particular case. Have we gone into the merits of this case?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: In ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: In this particular case. Have we gone into the merits of this case?
170) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: We haven't even started with this case.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Precisely. Why do we need the records? I've read the constitution over and over now. We want to prepare ... the 'documents will assist us to prepare the case, his defence. It will assist Colonel Phiri to prepare, the documents will clarify those charges (unclear) We need to prepare the documents, so there's no point now hammering us on that Friedman case, this is irrelevant to us. It's irrelevant to us. Please, Judge, with great respect, we have never argued about the relevance of these documents. We have never, never argued. We have always sought to find out, "how soon?" You offered to assist with the Information Act if it was delayed. Happily they've up with a decision, a final decision. When they did so on 20 June, or 20 August, to say, "No appeal will be looked into. This case has commenced." They've got all the arguments to say why they take the view that it has commenced. They say we must be provided, they don't say ... they say there is a relief fox Colonel Phiri. The letter's here, the relief is that prosecution, because the trial has commenced, must provide those documents. Now, I can't really get to Major Francina J. Botha, her superiors in the prosecution and say, "March to-the. army college. Meet General Gilbert Lebeko Ramano and say, "General Gilbert Lebeko Ramano, open this door, these documents are required for this trial." It has always been our argument as to say why are they proceeding when they are not ready when they cannot furnish those documents and they proceed on this thing? We've argued at length about that.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Precisely. Why do we need the records? I've read the constitution over and over now. We want to prepare ... the 'documents will assist us to prepare the case, his defence. It will assist Colonel Phiri to prepare, the documents will clarify those charges (unclear) We need to prepare the documents, so there's no point now hammering us on that Friedman case, this is irrelevant to us. It's irrelevant to us. Please, Judge, with great respect, we have never argued about the relevance of these documents. We have never, never argued. We have always sought to find out, "how soon?" You offered to assist with the Information Act if it was delayed. Happily they've up with a decision, a final decision. When they did so on 20 June, or 20 August, to say, "No appeal will be looked into. This case has commenced." They've got all the arguments to say why they take the view that it has commenced. They say we must be provided, they don't say ... they say there is a relief fox Colonel Phiri. The letter's here, the relief is that prosecution, because the trial has commenced, must provide those documents. Now, I can't really get to Major Francina J. Botha, her superiors in the prosecution and say, "March to-the. army college. Meet General Gilbert Lebeko Ramano and say, "General Gilbert Lebeko Ramano, open this door, these documents are required for this trial." It has always been our argument as to say why are they proceeding when they are not ready when they cannot furnish those documents and they proceed on this thing? We've argued at length about that.
 |
| Mr Gilbert Lebeko Ramano (07 July 1939-) The Civil Servant who per sworn affidavit of one Mr J.H.B. Kleynhans (Chief State Witness Against Accused Phiri), ordered "the investigations that were taking place February-March 2001 against Phiri". The report, ordered by Gauteng North High Court Judge Claassen "That it be given to Phiri (c.March 2004) based on those investigations", is now the source of all the Zuma Nguni Tribal and Xenophobic suppression and persecution of Phiri. Zuma is denying Phiri that Ramano Report, despite the Judge Claassen order. Zuma is denying Phiri funds to fight that case in the Supreme Courts of RSA. Zuma has initiated at least two running cases against Phiri over the same matter Zuma says Phiri must pay from his own pocket to oppose Zuma cases Zuma says that shall happen despite the fact that Phiri's a civil servant. Zuma has suspended Phiri from work (March 2011) over same Ramano Report Zuma reneges on an earlier agreement between said Minister and Phiri that, in the event the Ramano Report is no more available "but a rubbish paper is available instead": such a paper be accompanied by a sworn affidavit from Ramano to confirm the "Rubbish Paper" given to Phiri as "The Ramano Report that necessitated the further investigations against Phiri (ordered by Drost 2001 March 7) and the subsequent 10 or so anti-Phiri Charges Charge 1 Charge 2 Charge 3 Charge 4 Charge 5 Charge 6 Charge 7 Charge 8 Charge 9 Charge 10 Charge 11 Charge 12 Charge 13 ...Charges that were finally meted out on behalf of Zuma by that one Drost 09 March 2011. An elaborate operation indeed by a Zuma in the abuse of state power, a Zuma who's trying by hook or crook to protect the name of his friend Nelson Mandela and his self-professed cousin the Zini-Bobelo "lady" who in fact, contrary to State-Witness-Kleynhans's lies for departmental disciplinary court consumption all at the expense of a Phiri who must be destroyed for whistle-blowing, was the reason why Ramano ordered an investigation of the corrupt college run by one Xhosa-speaker Edward Petane, and a college dominated by the aforementioned Mandela-cousin Zini-Bobelo who not only committed adultery in order to pass and become a general when she knew nothing worth promotion, but apparently went out to brand "white racists" all Afrikaners who were criticizing her unseemly and un-officer-like behaviour over and above engineering her boyfriend(s) and fellow-Xhosa-tribespeople like Petane, Mgwebi, Kula, Motau and Matanzima to join her corruption cover-up at the expense of persecuting Phiri for Zuma. This then, becomes in 2012, the meaning of Jacob Zuma for South Africa and for Phiri: The Cover-up Man for Mandelasque Xhosa Tribal Corruption in his own government! (Just like he, in exile, turned a blind eye to his own fellow Zulus being murdered by Xhosa-speaking tribalists under Xhosa-speaking Oliver Tambo) Zuma, &very finally for his forlorn life in the pocket of Mandela's tribalsim: Zuma deliberates ignores the fact that prior to the 9th March charges Zuma's governmental system received 6th March a grievance over this matter In South Africa's Mandelasque Xhosa tribalsim and corruption cover-ups Zuma pretends he knows not about South Africa's Law called "The Promotion of Justice Act" Zuma would rather review the Constitutional Court that oversees the implementations of all constitututional Acts of Parlimanet All So That Phiri and Other Citizens of the RSA Must Be Muzzled whenever they see his rampat Nguni corruption at state expense! |
171) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: You see, you're misunderstanding the whole point.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Mm.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: You're misunderstanding the whole point.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: With which did I misunderstand now?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: With all due respect, that's why it's my concern. The concern is that surely you need to prepare, granted. Let me ... listen to me please.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, we need to prepare indeed.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Obviously you need to prepare.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah. Mm.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: But if the facts would still need to be judged, whether the charge sheet is so complicated that you cannot prepare without these documents, that is the matter that we'll deal with when you make the application for these documents. You understand?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Mm.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: You're misunderstanding the whole point.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: With which did I misunderstand now?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: With all due respect, that's why it's my concern. The concern is that surely you need to prepare, granted. Let me ... listen to me please.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah, we need to prepare indeed.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Obviously you need to prepare.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yeah. Mm.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: But if the facts would still need to be judged, whether the charge sheet is so complicated that you cannot prepare without these documents, that is the matter that we'll deal with when you make the application for these documents. You understand?
172) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: I know about that.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Because I do not know what the charges are even at this point in time, but your whole concern is that we need these documents to prepare from the defence side, and I can understand that.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Because I do not know what the charges are even at this point in time, but your whole concern is that we need these documents to prepare from the defence side, and I can understand that.
173) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL:
174) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Uhuh. But that is only one factor. Surely this case cannot be delayed ad infinitum if these documents are not provided in request from the state then you should come to court and say "I put it on record. We have difficulty to prepare, due to the fact that this and these documents were requested.
175) The relevance We still argued to. this court, we'll lay the foundation and we'll still argue back we're going to put it to the relevant witnesses to the state and they will have to explain, and then we'll ask for the court's assistance for an order to be made that those documents be brought into court and then in cross-examination we'll stand down. We'll ask for time to prepare for further cross-examination on these documents because now we had to follow this lengthy process. We were forced to -go through this lengthy process in the interest of my client because we are going to argue certain points about this, bearing in mind that the court has to objectively still make a judicial finding about the matters in total, holistically speaking, but this might be relevant for us to finalise certain questions." But it should not be a process that stopped the whole procedure if you have started your remedies.
176) My concern, if I can. recollect, was on the 24, "What remedies did you use?", and you said well, you'd asked for this. You've applied for a letter, and I said, "From when did you apply for the letter? When did you start the Information Act's request and so on?" Then I said, "let's say what would be a reasonable period for all these proceedings to be finalised in the interim, that's why we gave three months, so that all these administrative requests would be replied to." At the end of the day, That was the reasoning of the court. You understand?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Judge, really it's very problematic because the judge wants to can judge one hand, one it's the prosecutor ...
177) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: That's interesting. When I was can't recollect that I was a prosecutor, but anyway
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: At the same breath ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: ... just the statements the court was.
making, at what point, you should use this, trial matters commenced, you must want to cross-examine ... I don't know why the court doesn't want to look at this constitutional decision that documents ... to prepare for the trial, what
does it mean? To prepare for the trial, it shouldn't mean
at certain stages. It shouldn't say ... you know, Judge,
in certain countries in Europe'... (unclear) ... where they are not following the ... (unclear) ... system of trials, The Accused would have the document himself. There will be nothing in the dark if he doesn't which he's going to be tried. Here is now ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: At the same breath ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: ... just the statements the court was.
making, at what point, you should use this, trial matters commenced, you must want to cross-examine ... I don't know why the court doesn't want to look at this constitutional decision that documents ... to prepare for the trial, what
does it mean? To prepare for the trial, it shouldn't mean
at certain stages. It shouldn't say ... you know, Judge,
in certain countries in Europe'... (unclear) ... where they are not following the ... (unclear) ... system of trials, The Accused would have the document himself. There will be nothing in the dark if he doesn't which he's going to be tried. Here is now ...
178) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Sorry, just for the record.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Let's put it in perspective, Counsel.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: We've got a different system in .South Africa, not so? You know about that?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, but ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Did you know about the trite HoHard case that ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: ... the Constitution ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yeah.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Let's put it in perspective, Counsel.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: We've got a different system in .South Africa, not so? You know about that?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, but ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Did you know about the trite HoHard case that ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: ... the Constitution ...
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Yeah.
179) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: .. (unclear) ... is there for that, that at least the documents a person knows about, they don't scour into what we don't know, what maybe there.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: No. .
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: We say what
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Counsel, listen to the court please
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: .. because we have a miscommunication here. You're referring to another system of law ... 25
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Uhuh?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: ... which is not prevalent in South Africa, number 1. Any inquisitories, acquisitories
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Mm.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: You agree with that?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, Judge.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: No. .
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: We say what
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Counsel, listen to the court please
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: .. because we have a miscommunication here. You're referring to another system of law ... 25
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Uhuh?
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: ... which is not prevalent in South Africa, number 1. Any inquisitories, acquisitories
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Mm.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: You agree with that?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Yes, Judge.
180) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Okay: So. it might confuse the assessors who don't have knowledge about the differences. Secondly, we're referring to the constitution, (now, a plain falsehood by the judge: Blogger) but the constitution dealt with the right to have insight into the police docket in Tshabalala's case, within certain parameters. You understand that?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Mm.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Now, I'm asking, are we not going over those parameters once again into something that. the court doesn't even know what the relevance is because it's, according to you, relevant, in your mind? I have no objective reasons to establish from the court any assistance why it should be relevant. I'm asking why it's relevant and I'm telling you about an alternative process, if there was a real concern that the court could have even assisted you and you immediately see that as that I'm trying to be a prosecutor as well, and I don't see your logic in that.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: The logic is here, Judge, in that you want to tell us ...
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Mm.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Now, I'm asking, are we not going over those parameters once again into something that. the court doesn't even know what the relevance is because it's, according to you, relevant, in your mind? I have no objective reasons to establish from the court any assistance why it should be relevant. I'm asking why it's relevant and I'm telling you about an alternative process, if there was a real concern that the court could have even assisted you and you immediately see that as that I'm trying to be a prosecutor as well, and I don't see your logic in that.
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: The logic is here, Judge, in that you want to tell us ...
181) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Objectively at all times ...
BHEKUMNDENI Q. PENUEL SIMELANE, MILITARY DEFENCE COUNSEL: Mm, yeah.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: objectively *the documents can be argued, at any stage, and the court can be asked for assistance. Not so? (Blogger: How can the court be expected to assist with horses bolting off when the same court of Mr Lüüs refused to assist while the horses are being harnessed? Or are black people of Sisulu’s Army, save of course her pro-British-and-above-the-law- Thembu-tribe, so stupid as to believe this legal drivel of yours?) Now, I'm asking you why ... you want me to get involved into-what is the value of this document and postponing this case ad infinitum without even having a proper insight in knowing what this is. You are requesting it on the basis that you need to prepare, that is your sole criteria.
BHEKUMNDENI Q. PENUEL SIMELANE, MILITARY DEFENCE COUNSEL: Mm, yeah.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: objectively *the documents can be argued, at any stage, and the court can be asked for assistance. Not so? (Blogger: How can the court be expected to assist with horses bolting off when the same court of Mr Lüüs refused to assist while the horses are being harnessed? Or are black people of Sisulu’s Army, save of course her pro-British-and-above-the-law- Thembu-tribe, so stupid as to believe this legal drivel of yours?) Now, I'm asking you why ... you want me to get involved into-what is the value of this document and postponing this case ad infinitum without even having a proper insight in knowing what this is. You are requesting it on the basis that you need to prepare, that is your sole criteria.
182) BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: Judge, with respect, don't use your predilections. This is not your case. It is the defence that is in charge, with great respect, and he's not causing this ... himself to be charged, the prosecution is charging him, . and it is their responsibility to furnish us with these documents. Now, how the court comes in to come and say at what time the court thinks those 'documents Would be necessary, you can't delay the trial, you know, you can't delay, if you want to proceed. The question is with respect, the court is just overlooking the constitution. It doesn't want to put the same words, of these words, of the constitution that we should prepare for the trial. We must have enough time and all documents are there to prepare for the trial. It doesn't say at certain stages of the trial, or when the court deems relevant.
183) The court has not charged this gentleman here. It has not charged him, so the court, if the court was not, biased, it takes us back to the question of bias, that all this conduct by the court has brought into the minds of The Accused (defence?) and Colonel Phiri in particular, with respect, a clear conviction that the court is biased. We are asking the court to say, "I want to get out of this case. This request is too strong-" I've argued, Judge, to say you will need somebody from somewhere. If a person would argue with this passion and conviction to say a particular judge will not be a fair arbiter in the matter, it ... one should not bring reasons from wherever, loads and loads of reasons, it should, once its past the scope of mere suspicions and mere perceptions into concrete facts as to why a particular judge must recuse himself it should be the end of the matter, and one must take it gracefully. It's not a personal affront.
184) We should detach ourselves from this situation. The judge must not say, "Now that this man is asking for my recusal for whatever reason, he's fighting me." Judge, a person has his career on the line here, has got his career on the line. He's bitterly cried before you in words to say, "My career has come to an end. I'm not going to courses, I'm not being promoted because of this case", and now he sees the judge as a person that will not give a fair judgement. I would like to submit, Judge, on authorities, which the 'court is aware—of; we've talked about the ... (unclear) case. We've talked about these matters at length, at least we...
185) ...I - believe, we are of one mind that if really it's beyond perception, beyond imaginations, it's ... (unclear) subjective as the court has correctly pointed out at some point that the constitutional court was under objectivity. We've driven the point home- now that there is a subjectivity that is sought that it respects, then the court will take it gracefully that "Let me give somebody a chance with whom this person might find accommodation, as a fair court. Let me not impose myself. That would be the attitude a reasonable person would take and not reinforce, if we are still on perceptions to say; "The man has perceptions that I've got a personal interest." He had asked me at some point, after I hadn't responded to that on the questions of personal interest and knowledge, what is their factually. You wanted me to address you on that, Judge, but I'm saying, Judge, what we already have, which is objectively stated on this matter should suffice, Judge, to say "Look, let them arrange for another court. Really, let me not be seen ..."
186) We should be human beings and, you know, accept certain things and say, "Look, let me not impose myself here. If it's this and this man is on the line and he has now put grounds within the confines of the law, which a reasonable person would take as grounds for seeking my recusal," this should be gracefully done, with respect, Judge. It's not personal in the sense that the judge would take a stigma that, "I was asked to recuse and I recused myself." The judge should see it as an enhancement, perceptions go about all of us, how justice must be seen to be done, It will go. about to say, ."I was tried by a judge that forced himself on my case for many reasons. Some of which are concrete. Some of which may be perceptions; depending on where we stand," But the fact of the matter is the. court has a life of its own.
187) The court should ask itself and say, "Look, can it be really that I forced myself into that situation and still say I wanted to be out? I wanted to be fair, and since I've got the power, I've got the authority, I will go ahead and say, look I want to try you." These are matters, with respect, which the court should ponder seriously. The application is not brought to diminish the court, no. To put the court in dim view, no. It's purely brought within the confines of fairness and justice that there are reasonable grounds taken by The Accused that the court should recuse itself. With great respect, we think we have made sustainable grounds here, objective grounds, especially around the events of the 24th the change of the situation. These are concrete things, the change of the situation, the reasoning about the court that I've allowed time even from there. Even the .. (unclear) ... itself to say the case ... we came here today already bound, chained by the court's orders that this case will continue.
188) So we cannot be expected to come and asked for postponement. We can play the order. These are not perceptions. The man sees bias here, "I must go to the slaughter here" and they've got the man to do it. I'm sure as Colonel Lüüs, as a respectable colleague, you don't want to carry that kind of baggage in your life. You don't want to carry that kind of baggage in your life. It's not worth it. It is just not worth it. If a man argues his passions before you, gives evidence or goes on why he doesn't want to see you, these things don't happen often. No adult, a senior officer, would simply want to take that kind of attitude towards his senior, to his more senior colleague just from nowhere and come to court, and take over (unclear) and say "Anybody can ask me any questions you want to. I really feel strongly about this:"'
189) These are some of the things that, Judge, with. respect, one should ponder about, and that it might be an ideal time to say, "Okay, let somebody else look into this. Let this man not go over my life." You know there are things one thinks about and these things should not be coming and say "what did I do?" "Why did I want to slaughter that person?" Unless there are any other issues, which the court would like to hear me on, Judge, I think I've made my word here on behalf of Colonel Phiri as to why the court, with respect, must recuse itself. We've argued, we've look at the constitutional case of the SARVU case and the court has made useful comments as to the objectivity. We've tried to put that in relation to this case, how objective Colonel Phiri's grounds may have been, you know, some of them have been perceptions to you, but I think those questions of the 24th and arising there from are objective, My Lord, that the court should indulge this request and open the matter to be looked at by his other brother and to take it up from there.
190) HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you. Anything else?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No, there's . nothing, Judge, unless there's something else you need from me.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you. Madam Prosecutor, do you wish to address the court on any aspects?
BHEKUMNDENI Q. PENUEL SIMELANE, SENIOR MILITARY DEFENCE COUNSEL: No, there's . nothing, Judge, unless there's something else you need from me.
HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you. Madam Prosecutor, do you wish to address the court on any aspects?
191) PROSECUTION COUNSEL Ms KAREN BOSHOFF: Judge, as it was a long and lengthy argument from the defence, I believe that let's break for five minutes. The prosecution does indeed intend to address the court.
.........................................TO BE CONTINUED ON NEXT POST!.................
CONTEXTUAL DEFINITIONS:
PORNOCRAT 1.“A WOMAN COMMANDING OFFICER WHO GAINED RANK THROUGH SEXUAL OR SIMILARLY-EMOTIONAL LIAISON WITH SENIOR(S) RATHER THAN THROUGH PLAIN MERIT”
PROSTITUTOR: 1.“A MALE SENIOR OFFICER WHO HAS CAUSED AT LEAST ONE WOMAN OFFICER TO BE PROMOTED THROUGH HIS FAVOURS VIA SEX OR SIMILAR EMOTIONAL ATTACHMENT TO HIM”
2. "A believer that such practice is too common in South Africa and should therefore be viewed as an accepted norm never to be linked to corruption."
PREAMBLE
BONE OF CONTENTION: EXPLOITS OF MANDELA-MATANZIMA-COUSIN 2001-COLLEGE-PROSTITUTE BRIGADIER GENERAL BOBELO-ZINI AND PHIRI’S BLOWING OF THE WHISTLE 06 FEBRUARY 2001 AGAINST PROSTITUTION IN THE ARMY OF THEN PRESIDENT THABO MVUYELWA MBEKI)
ARCH-CONSTRUCTOR OF CHARGES: ATTEMPTED “PROSTITUTOR” ARMY INSPECTOR GENERAL EX-EASTERN CAPE ENOCK MUISENG MASHOALA, MAJOR GENERAL, AND HE WHO “WAS DEMANDING SEX AND ON SOUR GRAPES ENDED UP VICTIMISING STAFF SERGEANT MABEL MBATHA” ON OUR PREVIOUS POST. MASHOALA’S OFFICE NOT ONLY REJECTED PHIRI’S 06-FEBRUARY-2001 REPORT TO HIS OFFICE ABOUT AMONG OTHER THINGS SEX-FOR-PROMOTION BETWEEN 2001 PROSTITUTOR RAYMOND LENTSOE COLONEL AND 2001-PROSTITUTE BOBELO-ZINI, BUT MASHOALA’S OFFICE ALSO LIAISED WITH ANTI-PHIRI STATE WITNESS
EDDIE DROST TO GIVE THE LATTER A GO-AHEAD WITH THE ANTI-PHIRI TRUMPED-UP CHARGES OF 09 MARCH 2001, THAT LINDIWE SISULU IS FORCING PHIRI TO ANSWER TO IN 2011 DESPITE SISULU’S FULL KNOWLEDGE ON HOW THABO MBEKI WAS ABUSING COURTS (EXAMPLE PRESIDENT ZUMA’S UNFAIR LEGAL TROUBLES IN THE PAST) TO FOSTER AND PROMOTE TRIBALISM AND REGIONALISM IN FAVOUR OF THE EASTERN CAPE WHERE LINDIWE SISULU’S FATHER AND FRIEND
NELSON MANDELA WERE BORN.
THE PROSECUTOR: A SMOKE-FILLED-ROOM CHARACTER Ms KAREN BOSHOFF WHO IS NOT ONLY UNDER THE COMMAND OF BOTH “PROSTITUTOR” DUNSTAN SMART REAR ADMIRAL OR HIS BLUE-EYED BOY SEGOMOTSO BAILEY MMONO MAJOR GENERAL, BUT HAS GONE A MILE EXTRA TO REMOVE FROM THE OFFICE OF ARCH-CONSTRUCTOR OF CHARGES MASHOALA THE ONE OTHER DOCUMENT CONFIRMING THE PROSTITUTION IN 2001 BETWEEN MANDELA/MATANZIMA COUSIN BOBELO-ZINI- AND LENTSOE, A DOCUMENT AND SIMILAR ONES JOINTLY WRITTEN BY STUDENTS COMPLAINING ABOUT THE LIFE ABOVE THE LAW LED BY MILITARY OFFICERS BORN IN NELSON MANDELA’S EASTERN CAPE PROVINCE OR RELATED to HIM, WAS AS PER A SWORN AFFIDAVIT FROM MASHOALA'S OFFICE [TAKEN AND CAUSED TO DISAPPEAR BY NO ONE ELSE EXCEPT PROSECUTOR Ms KAREN BOSHOFF].
THE JUDGE: A PORNOCRAT OR SOMEONE UNDER THE COMMAND OF BOTH “PORNOCRAT” ANNEMARIE MYBURGH {BRIGADIER GENERAL} AND “PROSTITUTOR” DUNSTAN SMART REAR ADMIRAL OR HIS BLUE-EYED BOY SEGOMOTSO BAILEY MMONO {MAJOR GENERAL})
ANTI-PHIRI STATE WITNESSES: PROSTITUTORS, THE COLLEGE INSTRUCTOR OR TWO WHO, LIKE RAYMOND LENTSOE, WERE HAVING ILLICIT AND CORRUPT SEXUAL RELATIONS WITH WOMEN LIKE MANDELA-MATANZIMA COUSIN BOBELO-ZINI 2001 IN ORDER TO CORRUPTLY PROMOTE THEIR COLLEGE STATUS OR RANK. STATE-WITNESS JOHAN HENDRIK BEYERS KLEYNHANS HIMSELF WAS “HAVING A 2001 EXTRA-MARITAL AFFAIR ON COLLEGE WITH LIEUTENANT COLONEL RENTIA DEINER” WHICH ROBBED HIM OF THE MORAL HIGH-GROUND TO CHARGE RAYMOND LENTSOE FOR A CORRUPTING SEX ENGAGEMENT WITH MANDELA/MATANZIMA COUSIN, BOBELO-ZINI).
ACCUSED: WHISTLEBLOWER ON SISULU’S SEX-FOR-PROMOTIONED SOUTH AFRICAN NATIONAL DEFENCE FORCE: GOODMAN MANYANYA PHIRI, LIEUTENANT COLONEL.
LINDIWE NONCEBA SISULU’S OWN LITTLE DIRTY TRICKS AND ILLEGAL TACTICS: THE UNLAWFUL REFUSAL TO PAY TO THIS DAY +-R300 000 DUE TO PHIRI’S HIGH COURT LAWYERS AND THEREBY UNLAWFULLY PREVENTING PHIRI FROM LAUNCHING AN APPEAL AGAINST PRO-SISULU’S JUDGE-SOUTHWOOD-MISGUIDED-IF-NOT-NIEU-COLONIALIST-JUDGEMENT AT THE EXPENSE OF INNOCENT PHIRI.
THREE CONCLUSIONS
Conclusion One: Seeing that the entire legal system of ethnic-Eastern-Cape-Lindiwe Sisulu is tainted with the corruption of sex-for-promotion whereas PHIRI blew the whistle on the sex-for-promotion by Mandela/Matanzima Cousin Bobelo-Zini Brigadier General, PHIRI can never have a fair trial in biased Sisulu’s Military Courts.
Conclusion Two: Seeing that the initial bone of contention back in 2001 was an Eastern-Cape-born woman officer who was selling her body for promotion, yet all three or more judges that have sat in Sisulu’s military courts so far have been lily-white ethnic Europeans, all three or more prosecutors in the case have similarly been lily-white ethnic Europeans, and all state witnesses have been predominantly lily-white ethnic Europeans with none of them from the Eastern Cape of Nelson Mandela, the assumption that people from the Eastern Cape are more intelligent that other black people of the Republic of South Africa or the rest of the Continent and thereby “deserve the right to occupy all the strategic positions in South Africa particularly Mandela in the military” is a British nieu-Colonial myth. These tribal characters on ivory towers pro-Mandela-tribe are just stooges of a nieu-colonialist rule over South Africa; AND, AS ALL OTHER STOOGES ANYWHERE IN THE WORLD, THEY ARE TOTALLY INCAPABLE OF FIGHTING A LEGAL BATTLE, OR ANY OTHER BATTLE FOR THAT MATTER, DEMANDING OF BRAINS AS IS THE BATTLE AGAINST PHIRI, HENCE THE WHITE MASTERS OF POST-1994 SOUTH AFRICA'S "FREEDOM" COME OUT IN THEIR GREAT NUMBERS AND THEIR TRUE COLOURS TO DEFEND THEIR BLACK EASTERN-CAPE STOOGES AND HOUSE-SLAVES CLUTCHING ON THE FORMER'S COATTAILS!
Conclusion Three: Since the loading of the dice by means of filling a court process with one racial group, particularly members of the tiny-minority white group who formerly colonized and oppressed black people in South Africa is against all policies of both the government of the Republic of South Africa and the ruling party (the great African National Congress of Pixley Seme), if Mr Zuma allows Ms Lindiwe Nonceba Sisulu, like a tail wagging the dog, to continue with the military kangaroo court against Phiri as directed by Sisulu’s fellow-tribesman-at-High-Court B.R. Southwood the Briton, such allowance will mark the beginning of a painful end to the rule of Jacob Gedleyihlekisa Zuma... a Grand Adios EVEN BEFORE THE ANC’S CENTENARY IN 2012!
1) (THE TRIAL IS A PLOY FOR VICTIMIZATION AFTER PHIRI BLEW THE WHISTLE ON MATANZIMA/MANDELA-COUSIN-BOBELO-ZINI’S SEX FOR PROMOTION BACK IN 2001 WHICH SISULU’S DEPARTMENT OF DEFENCE AND VETERANS AFFAIRS FEARS WILL OPEN A CAN OF WORMS ON OTHER FEMALES LIKE DIRECTOR OF SANDF JUDGES ETHNIC AFRICAN MRS ANNEMARIE MYBURGH WHO REPORTEDLY GOT HER PROMOTION THROUGH EMOTIONAL INVOLVEMENT WITH HER SUPERVISOR ETHNIC-BRITISH OFFICER DUNSTAN SMART)
2) Nature of the transcripts
3) These transcripts are only a reflection of those portions that Ms Karen Boshoff, the prosecutor with an axe to grind against Phiri turned review officer, made accessible to me. The records definitely do not include areas where the various senior military judges made controversial, unseemly and prejudicial statements against Phiri.
4) PROSECUTION COUNSEL Ms KAREN BOSHOFF: As the court pleases, Judge, the DD1 was written out 9 March 2001 where the member was formally charged, Section 29 Appearance on the Directing Staff l 9 March 2001 where a recording officer was appointed. Preliminary investigation was finalised 16 March 2001, then the first postponement was on 28 June 2001, postponed to 18 September 20 2001. The third Section 29 the matter was postponed again on 18 September 2001 to 26 November 2001. The fourth Section 29 was 26 November until where the matter was once again postponed to 8 January 2001 (2002?), and from that period of second 29 Appearance 28 June 2001 the matter was postponed on request from the defence counsel. From 8 January 2002 the matter was postponed to 26 February 2002, then on 26 February 2002, once again the matter was postponed to 24 April 2002. The seventh Section 29 Appearance appeared on 26 April_ 2002. where the-matter was postponed to 24 June 2002. The last postponement was on 24 June 2002 till date 10 September 2002 for final remand and for proceeding on the matter. All these postponements were due to the defence counsel's request for postponement and the state, through all these postponements, was ready to proceed. HENDRIK JOHANNES LÜÜS, SENIOR MILITARY JUDGE: Thank you, Madam
5) Secondly, the veracity or precision of case law quoted here cannot be relied upon for several reasons chief of which is the fact that what you read is the result of scanned material and too many characters of print will as a rule fall through the cracks of the scanner. The same reasoning goes for corrected spelling the luxury of which I will leave for others to consummate (the “others” including those of my most enterprising of readership who, I gather, can with ease correct spelling for their own brain as they go along!
6) Lastly, I have further simplified the reading (or “complicated” it) by identifying the personal names of the lawyers in the military court. It is important in a country still besieged with tribalism (the highest form of racism) in its military for the reader to know who the individuals are who, hiding behind the cloak of military-law officers, but still perpetuate racism or tribalism in a (people-driven) democracy of South Africa.
7) Senior Military Judges: There has been talk of a Senior Military Judge Sisulu or some similar Thembu surname in the military. His impact in transforming the SANDF, it would seem, has gone unseen. This is to say nothing about transforming the very military judicial system which is practically lily-white when it comes to judges and prosecutors in an army where mostly blacks are charged quite disproportionately from their demographic signature, for allegedly committing crimes against a disproportionately overrepresented senior whites and Thembus in the Mandela-Mbeki SANDF. Worst, it would seem that the sex-for-promotion corruption is rife even in the very military judicial system. The serious question is whether the female supervisor of senior military judges in the SANDF, one Brigadier General Annemarie Myburgh and an apparently married woman, for that matter, had not got his promotion through emotional involvement with at least kisses in the headquarters of the SANDF with military legal supremo, Rear Admiral Charles Dunstan Henry Smart. While Smart is the man who has gone on record as having gone to his own court to coerce a judge to allow a rumoured girlfriend of General Sphiwe Nyanda walk scot-free after a conviction that was bound to have her dismissed from the SANDF (fraud), his kissy-kissy woman friend Myburgh has always made it a point to appear in court whenever the Phiri sitting takes place and she has been known to be coaching her judges in situ, particular Judge Michael Albertus Venter who, as you will see in the transcripts, is the one who tried to force a trial against Phiri whereas Phiri had not received even one document required by law as a prerequisite for defence. Myburgh is of course concerned for a sure conviction against Phiri, I believe, because should Phiri be found not guilty, the government will naturally have to pursue the sex-for-promotion Mandela-cousin Brigadier General Bobelo-Zini enjoyed and probable similar promotion trajectory for Myburgh. What chances is there that Phiri will receive a fair trial without one single non-Thembu and non-white judge who will also have courage enough to stand against another Myburgh breathing down his/her neck?
ZERO!!!
8) Prosecution Counsel Prosecution counsels have followed a similarly racially-biased pattern in my experience, lily white prosecuting a virtual all-black accused of challenging the authority of some white or Thembu-related general or Colonel. My experience with this particular type of lawyers is they are tricksters out go get you without one ounce of ethics in terms of required procedures. Prosecutor Boshoff in these pages has been placed on record as having by around 9 March 2001 received a copy of the Mashoala report (or portions thereof) I am looking for through the High Court, but she never to this day handed it to me to this day.
9) Senior Military Defence Counsel
10) Insofar as the players are in these transcripts, the Accused naturally is Goodman Manyanya Phiri; his Defence counsel has always been Bheki Simelane, a 65-year-old Veteran of South Africa’s anti-liberation struggle behind his belt also with extensive law practice in Durban where he nearly lost his life in the hands of the apartheid security forces for his never-say-die spirit of defending freedom fighters who were arrested. In exile, Simelane also practised as an advocate in the Robert Mugabe government. On his return to South Africa during repatriation, he joined the SANDF as one of the most senior and longest-serving former guerrillas; and in that regard, definitely more senior than Sphiwe Nyanda who under the Mandela government, was perhaps controversially appointed Chief SANDF whereas a more senior man was available.
11) My reading is that Nyanda was preferred over Simelane mainly because Mandela wanted to cut himself as this saint who did not harbour any of the anti-Zulu tribalism of exile by appointing a Zulu as head of the military. But when you discover that Simelane is also a Zulu, then you realize that perhaps the overriding reason for Mandela was to try and placate the Zulu- and Swazi-speaking families who, alongside Seme, the Royal Dlamini (through writer’s maternal great-aunt Swazi Queen Mother Labotsibeni) and later Masina and the mostly-forgotten-and-maligned Hadebe family whose head reportedly opened the first exile office of the ANC in exile only to be maligned by subsequent Thembu tribalists in exile for his troubles. Now Sphiwe Nyanda is a member of the Lesley Masina extended family. As to whether he is related to good governance is a question that speaks for itself what with ethnic-British-spawned white racism is still rife in the SANDF that he until around two years ago he had been running for something like a whole decade. It is also under Nyanda’s watch that Mandela and subsequently Mbeki used the SANDF as a spoil or a milking cow for the Mandela extended-family members and fellow-tribespeople to be in the most senior SANDF positions with the likes of the Matanzimas and now the Bobelo-Zini central to this State-versus-Phiri case. It is furthermore under Nyanda’s watch that the usage became rife of sex with the highly-placed of the SANDF where Mandela relatives/tribespeople and their ethnic British fellow-senior commanders dominate, as a deciding tool for promotion of women officers to more senior positions in the military as is the case with Bobelo-Zini. As an eye-opener, Sphiwe Nyanda is also one of the cabinet ministers fired by Jacob Zuma recently for lack of performance!
12) [Court sitting 26 April 2001]
13) this sitting is a mere time estimation based on the evidence to follow hereunder. The review section of Sisulu Military Records claims they do not have records of what took place in the matter of State Versus Phiri prior to that. Definitely, Ms Karen Boshoff, Prosecutor-turned-reviews officer, handed no transcript earlier than what lies hereunder. Raising questions on any successful and fair review of the case supposing Phiri is found guilty by Sisulu’s kangaroo court at her military, the absence of huge chunks of recorded matter (I call it a sabotage by Sisulu’s criminals in uniform playing lawyers), the dearth and actually disappearance of court records and recordings (confirmed even by Military Judge Michael Albertus Venter the court sitting of 13:40 on 25 February 2004.) raises the moot question as to whether injustice in the case of Phiri has already been ingrained by Sisulu in order to teach a lesson to any South African who dares challenge criminals elements of the two big families (Sisulu and Mandela) that nieu-colonialist Britain is using to perpetrate the untold mineral, cultural and other forms of exploitation against this African country.
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