[TRANSVAAL PROVINCIAL DIVISION]
CASE NO: c)(0'D--Ct_.
In the matter between: -
THE MINISTER OF DEFENCE FIRST APPLICANT
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE SECOND APPLICANT
and
GOODMAN MANYANYA PHIRI RESPONDENT
CONFIRMATORY AFFIDAVIT
I, the undersigned,
ELIZABETH DE VILLE LOURENS
do hereby declare on oath and state as follows:
1
I am an adult female Lieutenant Colonel in the employ of the Department of Defence and a Project Member SA Army 2020 and stationed at Thaba Tshwane, Pretoria.
2.
The facts deposed to herein are, unless otherwise stated or the contrary appears from the context, within my personal knowledge and information and are true and correct.
3.
I have read the founding affidavit of Major General SEGOMOTSO BAILEY MMONO and hereby verify and confirm the facts set out therein in so far as they fall within my personal knowledge and/or refer to me. In particular I wish to confirm that on 11 August 2004 I deposed to an affidavit relating to the Board meeting that was held on 30 January 2001.
4.
The said affidavit has been attached as an annexure to these papers and I confirm the contents thereof. I request that it should be read as forming an integral part of the founding affidavit in this matter.
DEPONENT
THUS SIGNED AND SWORN TO BEFORE ME AT 9f7 ri0R-M- ON THIS
THE 0'7 DAY OF JUNE 2005, BY THE DEPONENT HAVING
ACKNOWLEDGED THAT SHE KNOWS, UNDERSTANDS AND HAS NO OBJECTIONS TO THE CONTENTS OF THIS AFFIDAVIT. SHE CONSIDERS IT TO BE CORRECT, TRUE AND BINDING ON HER CONSCIENCE.
:F NnAK.FlurbA
704-0052SS'
COMMISIONER OF OATHS
IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
CASE NO:
In the matter between: -
THE MINISTER OF DEFENCE FIRST APPLICANT
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE SECOND APPLICANT
and
GOODMAN MANYANYA PHIRI RESPONDENT
CONFIRMATORY AFFIDAVIT
I, the undersigned,
JOHANNES HERMANUS PETRUS COETZEE
do hereby make oath and state as follows:
1
I am an adult male Lieutenant Colonel in the employ of the Department of Defence and a Senior Officer in Charge: Legal Advice and Litigation, at Legal Satellite Office ("LEGSATO"), Thaba Tshwane, Pretoria.
ath
2.
The facts deposed to in this affidavit are to the best of my knowledge and information true and correct, unless otherwise stated or the contrary appears from the context.
3.
I have read the founding affidavit of Major General SEGOMOTSO BAILEY MMONO and hereby verify and confirm the facts set out therein in so far as they fall within my personal knowledge and/or relate to me.
Y'012-Ng1>
THUS SIGNED AND SWORN TO BEFORE ME AT icky,..Aio O. ON THIS THE 51,0-0--5 DAY OF MAY 2005, BY THE DEPONENT 'HAVING ACKNOWLEDGED THAT HE KNOWS, UNDERSTANDS AND HAS NO OBJECTIONS TO THE CONTENTS OF THIS AFFIDAVIT. HE CONSIDERS IT TO BE CORRECT, TRUE AND BINDING ON HIS CONSCIENCE.
IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
CASE NO: Dt.) u_S
In the matter between:-
THE MINISTER OF DEFENCE FIRST APPLICANT
DIRECTOR, MILITARY PROSECUTIONS SECOND APPLICANT
DEPARTMENT OF DEFENCE
and
GOODMAN MANYANYA PHIRI RESPONDENT
CONFIRMATORY AFFIDAVIT
I, the undersigned,
STEPHEN OUPA MOKALAKE
do hereby declare on oath and state as follows:
1
I am an adult male Colonel in the employ of the Department of Defence and a Senior Staff Officer: Inspections IG Army at Army Office, Pretoria.
2.
The facts deposed to in this affidavit are, unless otherwise stated or the contrary appears from the context, within my own personal knowledge and are true and correct.
3.
I have read the founding affidavit of Major General SEGOMOTSO BAILEY MMONO and hereby verify and confirm the facts set out therein in so far as they fall within my personal knowledge and/or refer to me. In particular, I wish to confirm that on 20 September 2004 I deposed to an affidavit relating to the matter of Lieutenant Colonel Phiri. The said affidavit forms part of the annexures annexed to these papers. I request that this affidavit should be read as if forming an integral part of the Applicants' founding affidavit.
THUS SIGNED AND SWORN TO BEFORE ME AT L012-12---°11-CION THIS THE I DAY OF JUNE 2005, BY THE DEPONENT HAVING ACKNOWLEDGED THAT SHE KNOWS, UNDERSTANDS AND HAS NO OBJECTIONS TO THE CONTENTS OF THIS AFFIDAVIT. SHE CONSIDERS IT TO BE CORRECT, TRUE AND BINDING ON HER CONSCIENCE.
0 I gl-a-7 Gais
pr), 6 alq P1.FLA
COMMISIONER OF OATHS
iv; E E Ff.; A PO
COMMUNn-Y F;EIIPPCE
Ik.",i;C:;-'3DAE3-FII,:9 • •
IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
CASE NO: ?..6-}g O
In the matter between: -
THE MINISTER OF DEFENCE FIRST APPLICANT
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE SECOND APPLICANT
and
GOODMAN MANYANYA PHIRI RESPONDENT
CONFIRMATORY AFFIDAVIT
I, the undersigned,
HENDRINA MAGDALENA WHITE
do hereby make oath and state as follows:
1
I am an adult female Colonel in the employ of the Department of Defence and
holding the post of Senior Staff Officer Inspections in the office of the Inspector VTh,
Agri OFRCZ
General Army at Thabo T:-.Thwane-; Pretoria.
2.
The facts deposed to in this affidavit are to the best of my knowledge and information true and correct, unless otherwise states or the contrary appears from the context.
3.
I have read the founding affidavit of Major General SEGOMOTSO BAILEY MMONO and hereby verify and confirm the facts set out therein in so far as they fall within my personal knowledge and/or refer to me.
THUS SIGNED AND SWORN TO BEFORE ME AT ON THIS
THE DAY OF JUNE 2005, BY THE DEPONENT HAVING
ACKNOWLEDGED THAT HE_KNOWS, UNDERSTANDS AND HAS NO
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CASE NO: 26284 / 2004
In the matter between:
THE MINISTER OF DEFENCE First Applicant
DIRECTOR, MILITARY PROSECUTIONS
DEPARTMENT OF DEFENCE Second Applicant
And
GOODMAN MANYANYA PHIRI Respondent
FILING NOTICE
DOCUMENT RESPONDENT ANSWERING AFFIDAVIT
TO REGISTRAR OF HIGH COURT
TSHWANE
AND TO STATE ATTORNEY OU MUTUAL CENTRE ANDRIES STREET TSHWANE
REF:1235/2004/Z36 Mrs.A.G.F.MOKGALE
RECEIVED COPY HEREOF ON THE DAY OF SEPTEMBER 2005.
CASE NUMBER: 26284/05
In the matter between:-
THE MINISTER OF DEFENCE First Applicant
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE Second Applicant
and
GOODMAN MANYANYA PHIRI Respondent
RESPONDENT'S ANSWERING AFFIDAVIT
I, the undersigned,
GOODMAN MANYANYA PHIRI
do hereby make oath and say:
1.
1.1 I am an adult male and a Lieutenant Colonel in the South
(-2
DEFENCE: Certain documents were required, Judge,
because most of the charges did not all relate to his attendance of Junior Staff course at the Army's Junior Staff Course, and it was even in the newspapers that there
5 were racial problems there, regarding those examinations. And my client then was a party to those events that led to the appointment of the inspector of the army, and who then produced a certain report, which is also relevant for the purpose of my. client's charges as to what was reported, his
10 investigations and what came out of that. And the examinations themselves and his being summoned by the relevant people there conducting those examinations where some of the charges emanated from.
And then it appeared to me that these
15 documents, which my client requires, are in fact necessary because the charges are related, or are connected to those documents. And then I then took over his request and then made requests myself to the Chief of the Army, referring to the request Colonel Phiri had done previously. I also
20 asked for my learned friend's assistance and it all came to nil by the end of 2001. And then when we came in February I then intimated to the court that now that the relevant authorities are not co-operating, we would then initiatP, a new procedure in terms of the Information Act, and
25 consequently on 28 February we formally lodged with the information officer of the Department of Defence requesting all those documents, which my client wanted.
And on 5 March we got this letter, Judge, from Major Pretorius who is the relevant officer 30 dealing with information. A relevant paragraph is
paragraph 6, the title is "RequeSt for access to records of
body Lieutenant Colonel G M Phiri".
"Please note that the' p'eriod for
finalising your request is 90 days as
35 in section 87(1)." I would like to
part of the record. Paragraph 6 reads:
complying with and stipulated by the Act place this letter as
2062-0311-611(v)
JUDGE: Thank you.
DEFENCE: Yes. So ...
JUDGE: Please continue.
DEFENCE: Judge, we then counted 90 days, which
5 this document refers to, from 5 March when it was issued, then we determined that 5 June they would have finalised the request, and either way we would know that we are
getting the document. If we were getting the documents
then we can prepare for the trial. If we don't, we
10 possibly then look at appeal procedures together with ... (unclear) ... The basis of postponing today is to get a date after 5 June when the information of the section of the Department of Defence would have, in terms of the Act, finalised Colonel Phiri's application for these documents.
15 JUDGE: Okay. And you say it's highly relevant
for purposes of preparing your case, and for purposes of cross-examination regarding the report that this gentleman, the Inspector General, obviously was busy with and other aspects?
20 DEFENCE: Yes, indeed, Judge, it is very relevant.
JUDGE: Thank you. That is all from your side?
DEFENCE: Yes.
JUDGE: Thank • you, Counsel. Madam Prnpr,,,i-ny-,
you heard what was said. I would like the state's input in 25 this please.
PROSECUTOR: As the court pleases. It is indeed so
that during November we received a letter from Colonel
Simelane requesting certain documents. A letter was
-referred back to Colonel Simelane -in November, which. he 30 only received in December, where we indicated that this
information is only available through the Information Act where the necessary authorities have to be contacted to get this necessary information. So, we did indeed inform the colonel that in November/December already that this
35 information will be needed to be ... or got hold of from
through the Information Act through the necessary
committee.
JUDGE: Okay, but the time period of two months
is not that serious, if you take two months further to
5 request the information. If the state is also of the opinion that they cannot provide that information surely ... and that might be relevant for purposes of preparing this case and/or for purposes of cross-examination, it might be in the interest of justice just to postpone it for
10 this 90-day period to see what information is forthcoming and whether this case can proceed, because at the end of the day one is sitting with apparently a relevant request, the way I understand it.
PROSECUTOR: 15 JUDGE: That's correct, Judge.
So is there any objection against this
postponement from the state's side?
PROSECUTOR: Not at this stage, no, Judge. The
postponement date, Judge, the prosecution as well as the defence counsel discussed, we are looking at 24 June.
20 JUDGE: 24 June?
PROSECUTOR: 24 June 2002.
JUDGE: And that will be what date?
PROSECUTOR: It's a Monday, Judge, 24.
JUDGE: Okay. Does that suit you, Counsel?
25 DEFENCE: Yes, Judge, it's a brief date.
JUDGE: Okay. This case will be postponed once
again, Colonel. Do you understand what the significance of
this postponement is? You have to be here, if you are not
here a warrant of arrest can be issued, -so obviously as a
30 senior officer be responsible, be here and at all relevant
times keep' contact with your counsel, becaus6 a counsel per
definition, has many clients and cannot be 1dOking for you. You- -should • be in a position, and have a * 'to '' Make continuous contact regarding this trial with your counsel.
35 You understand?
ACCUSED: Yes, Judge.
JUDGE: Okay. When do you have to be back, on
what date?
ACCUSED: 24 June 2002, Judge.
JUDGE: Okay. Are there any other concerns from
5 your side before I postpone this matter?
ACCUSED: Not at the moment, Judge.
JUDGE: Okay. Thank you. Counsel, anything else
you want to place on record?
DEFENCE: No, nothing further, Judge.
10 JUDGE: Thank you. Then this case is postponed.
PROSECUTOR: Thank you, Judge, if it pleases the
court.
(Case is postponed until 24 June 2003)
(End of tape 1)
15 (Court re-opens)
COURT CASE OF COLONEL GOODMAN MANYANYA PHIRI COMMENCES ON 10 SEPTEMBER 2002
JUDGE: For practical purposes we are in
20 chambers. We haven't started the court yet and Colonel
Simelane and Major Boshoff are present. Colonel Simelane,
you have an application? Please proceed.
DEFENCE: Judge, I was wondering whether I can ask
Colonel Phiri to be present in court when we ...
25 JUDGE: Yes, certainly. I'm going to switch off
until your client is present. Just a second, please. (Recording machine was switched off)
JUDGE: Please be seated, Colonel, because your
counsel.wants to make-an application and-he requested• that 30 you be present to hearthe application. Please be seated,
so that we can listen to this application. Colonel
Simelane, please proceed.
DEFENCE: As the court pleases. Judge, we intend
to bring three applications at the commencement of this 35 trial, but the defence is just worried about maybe the sequence that these applications' Will have to take. The
consideration is that they may be done separately, in sequence, or they may be combined. In other words the witness may be in the witness stand to give evidence in respect of the three applications are separate.
5 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:
10 (1) To bring an application for recusal
of the court, the presiding judge. It will be the first
application.
The second one will be an application on the question of assessors with an objection of assessors._
15 This will be a two-pronged application. It's first leg will be that Colonel Phiri as an accused had made Selection choices of assessors, and that in his view those assessors are selected by him. If available, that selection should be sustained. The second leg of that application would be
20 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 other assessor who happens not to be the one he has chosen, but the recommended assessor as to how he
25 feels that that assessor will be unsuitable for this case.
And then the final application, Judge, would be the application on the question of documents that the defence requires. The defence will also need an order therefore, a determination by the:court as to whether those
30 documents are relevant and that those documents are necessary, and that'those documents would then need to be furnished.
NOW, when tbnSUlting with Colonel Phiri I
said I'm not sure what would be convenient to the court to
35 hear these matters, because then there's this application
for recusal. It would probably maybe have been possible to
8 hear all of them, but if 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
5 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.
10 But as I indicated initially, then we're
just looking for directions whether is the court able to make an order now to say, "I would like to hear all those applications at the same breath, notwithstanding the possible implications of the question" If there's an
15 application for recusal the court may not be competent to hear other matters unless the status is determined, the status of the court is determined, or the court would like to say, "Okay, I'll make an order after hearing all the applications." That is the kind of direction we're seeking
20 from the court.
Rnd this would possibly ae by way of an order that the court orders that these applications will take form such that it would become issues we could look after later, because as I understand the directive from
25 Director, Military Judicial Reviews, where General Larney
is, there was, in another matter, which was brought inter-
(unclear) ... applications and his office desisted that it be furnished with records in order to ... that those appeals be heard-before-the case is finalised.
30 Now, I have advised Colonel Phiri of that
order by Judicial Reviews that therefore the . . if orders . .....
are adverse now it will not be matters upon which he can seek-appeals at this stage, not until the matter has beet. finalised. In other words the trial has been disposed of
35 and it becomes a matter for appeal and review to the Court
2062-03/awri(n)
of Military Appeals insofar as General Larney's directions. But ...
JUDGE: Surely we have case law on this.matter?
DEFENCE: Ja, of course, I'm aware that, Judge,
5 there will be case law and I'm saying this because the
order became implementable, the directions of General (unclear) ... we were in that matter we were not
furnished with further records until that matter was disposed of.
10 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 wa't for the other assessor because I put forward we're waiting for the assessor before we' commence 'proceedings now. The assessor,
15 unfortunately they broke into his house, and they're busy
with police statements. He's on his way, so this matter
will stand down for 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
20 himself. Thereafter, if I understand you correctly, the
assessor is based on two legs. The first is that the
accused can choose the assessors. That is a new dimension, which I'm not aware of. You will have to show i t to me in law.
25 And then obviously the one concerned with
one of the assessors, I'm not sure which one, and you'll-have to make a proper application. That assessor will be excused while myself and the other assessor consider the application,- and then lastly, the documents are legal
30 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. At this point in time the court will stand down anc1.8 will
deal with it, starting with the recusal of the judge. So
35 in the meantime prepare your arguments, Colonel Simelane,
2062-05tdri(v1)
and then we can proceed with that application as the assessor is available. soon as
DEFENCE: Okay. As the court pleases, I.... it's a
little besides but it's a point relating now to the
5 availability of the defence counsel. T just want to indicate to the judge that my availability for this case, in terms of the authority that has been granted to me, it's only for today. The point is I'm attending a course at the moment, it started last month and this course finishes on
10 22 November at the Military Health Training Formation. And when I went on this course I discussed with Lieutenant Kruger who is in the defence counsel as a ..
JUDGE: Sir, just, tell me, this case has been
postponed to a final date today, to start with the state's 15 case, so
DEFENCE: Yes.
JUDGE: how are you able to be on a course
knowing that you have a case? You will have to address me
on that issue. I'm not going to hear you now, and then you
?() can take the matter further, because this was an order by
finalise this case if need be, or be available due to
putting yourself on course, I would like to hear your-
reasons. So the court will deal with your applications and
25 then I'll deal with that matter. For the time being this
matter will stand down until the assessor is back. Thank
you.
DEFENCE: As the court pleases.
PROSECUTOR: As. the court pleases.
30 (Court adjourns)
(Court 're=opens)
JUDGE: Both assessors are present at this point
in time. Before this court case can proceed, and before we
read the Code of Conduct, there was an application this
35 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.
5 (Recording machine was switched off)
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?
10 PROSECUTOR: That's correct, Judge.
JUDGE: Please proceed, so that the court can
just hear what the history of this matter was,
with the DD1 please. starting
PROSECUTOR: As the court pleases, Judge, the DD1 was
15 written out 9 March 2001 where the member was formally charged, Section 29 Appearance on the DS 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 tho period of second 29 Appearance 28 June 2001 the matter was
25 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
30 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,
35 through all these postponements, was ready to proceed. JUDGE: Thank you, Madam.
2062-03/Phiri0/0
PROSECUTOR: If it pleases the court.
JUDGE: Colonel Simelane, you have certain
concerns, please address them- on record regarding starting off, I would recommend with the recusal of the judge 5 himself. What's your factual basis for that?
DEFENCE: 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 said.
JUDGE: Yes, certainly.
10 DEFENCE: 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
JUDGE: Sorry. May I interrupt you, and just ask
15 for courtesy that your client 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, please be seated.
ACCUSED: Thank you, Judge.
JUDGE: Thank you. Please proceed.
20 DEFENCE: 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 postponements as a result of a request by the defence, those postponements; for clarity and for the benefit of members that were not
25 present in this court, were to get certain cocuments, 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
30 therefore for the trial. The prosecution failed to provide
these documents and, in fact, on 26 NOVeber 2001 the .....
prosecution gave the indication that the defence counsel
must utilise the Information Act for that purpose.
Following upon that Directive by
35 prosecution we pursued the line of the Information Act. until very recently on 20 August when we got a final
2.062703/Mrier0
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
5 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.
JUDGE: Thank you. But, Counsel, we still need
10 to hear you on your first application, please.
DEFENCE: 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.
15 JUDGE: Regarding, so to speak, a trial within a•
trial, if I understand you correctly?
DEFENCE: Yes, he will give evidence as to why he
wants the court to recuse himself, and ...
JUDGE: Well, I'm not sure about the procedure.
20 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
25 boundaries? "Objections to Military Judges and Assessors, Rule 36 read with Rule 35." Tell me where you see this that your client can give evidence.
DEFENCE: I will answer the court in two ways.
One, this is, to the defence, _ it's a common ,law- right to 30 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,
35 and over and above that evidence, argue on the point. The objections are no different, that is trite.
2062-03:Thiri(vt)
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 objectionis
concerned
5 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."
In this case, if this suffices, Judge, we
10 elect first to give evidence by the accused and thereafter sum up by way of a brief argument if that will suit the court.
JUDGE: Well, obviously what I've asked is not
your interpretation of 36(3). I understand 36(3) quite
15 well. 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. Now, I'm asking you, on what basis do you bring this application before I hear your client? Argue the law for me please,
20 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 orounds are, what the legal grounds
25 are, and then the court will proceed to your client.
DEFENCE: 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
30 like putting the cart before the horse because I have to
apply the law to the facts ifthese are put, and if the facts are not befOre the court I can give a statement of indication a precursor, a statement that would in .
it's just a statement. Usually statements are a question
35 of elections before the commencement of any trial there's an election whether we want to make a statement indicating
2062-03/Phiri(v0
how we want to go about with our case, what the court may expect.
If the court ... (unclear) sort it
out from me, I can give an indication as to possible
5 grounds, but obviouSly the grounds will come firmly from the accused, because I'm not making a recusal. I'm representing somebody and it is that person who wants the court to be recused, it is not Colonel Simelane who's defence counsel. I only act on instructions, but if the
10 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.
JUDGE: Well, obviously as I stated, in law, you
have to lay the foundation before the court can consider
15 allowing proceedings that are not reflected in case law or in the statute itself. Coming to your point, first and foremost the common law right, surely co=on law applies
where statute does not apply? If it's by definition set
out in statute, then the statute applies. You know that
20 rule as well.
DEFENCE: 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.
JUDGE: Rule 36, Rule. 35 read with 20(9), so the
25 court, or section 20(9) in the new amendment, in the Rules and Amendment, so what. I'm asking is, where is case law? 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.
30 DEFENCE: . (unclear) with your recusal,
Judge?.
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
35 court knows your request for information, the Information Act is there. The Constitution is there, but I have yet to
2062-0/PMr4Y0
come across case law where the information requested that
was not provided, has subsequently influenced the merits of
the case. And there I've got case law as well and I'll
deal with it. Now I'm getting to this point and I would
5 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
10 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.
DEFENCE: Judge, the court is talking about all the
criminal cases. The point is, Judge, which has not been
15 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 aoplications should 1--,e hard
20 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
25 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 .....
30 JUDGE: Counsel, it's a very simple question.
DEFENCE: Yes.
JUDGE: Let's not make it intricate. What cases
-in -the constitutional court deal with the a.pplieation for judicial recusal? There are two pertinent cases, what
35 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?
DEFENCE: I don't ...
JUDGE: When you come to court, you should know
5 what the law is.
DEFENCE: 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
10 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 seeks to give evidence before the
15 court. What is the problem there, Judge?
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.
20 DEFENCE: No. Judge, it's not the right word, This
opinion". He's going to give evidence. That is the key
word that is being used. The accused wants to give evidence, not give an ... whether ... you can't judge what he hasn't said whether it is an opinion or not.
25 JUDGE:We
We haven't come to that stage.
haven't made a finding. I'm asking you what is the legal
basis. Before we commence
DEFENCE: by you.
30 DEFENCE:
DEFENCE: There are no opinions have been rendered
Before we commence
No Opinion's have been rendered by the
judge. At this point no opinions have been rendered by the judge. He only seeks ' tO ' give evidence:
JUDGE: Okay, but ...
35 DEFENCE: To the reason why the court must recuse
itself.
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)?
5 DEFENCE: 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.
10 JUDGE: Thank you. So let's proceed. I'll hear
proper legal argument from you at a later stage I presume? DEFENCE: As the court pleases.
APPLICATION FOR RECUSAL OF THE JUDGE
15 WITNESS NUMBER 1 : 98007693PE : LIEUTENANT COLONEL GOODMAN MANYANYA PHIRI (Hereinafter referred to as "ACCUSED") GIVES EVIDENCE UNDER OATH
JUDGE: Are you comfortable if proceed in
English today, Sir, or do you need an interpreter?
20 ACCUSED: I'm comfortable with English, Judge.
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
25 which you are comfortable, so that there's no problem in that regard. Colonel Simelane ... you may be seated, Sir,
and speak into the microphone. Colonel Simelane,
witness.
DEFENCE: As the court pleases.
30 EXAMINATION IN CHIEF: your
DEFENCE: Colonel Phiri, do you want to make an
application that the court recuses itself?
.
ACCUSED: 'Yes, indeed, Defence Counsel.
DEFENCE: Could you please give your evidence as to.
35 the grounds upon which you seek the court to recuse itself?
ACCUSED: As it so pleases the court, I've had
several appearances since our charge last year. Those
appearances of course taking place in this court, and it is
my understanding that on every one of those appearances
5 there had been one duly qualified judge as part of the court that presided over those appearances. 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
10 the day, if I could put it that way, listened to arguments from both sides of ... may I call it "benches", that is prosecution and defence and came to a decision, based on the result of such arguments.
And for me the last appearance that
15 made prior to this one, of course, was 24 June, if my memory serves me well, for the judge irresoective of the position the judge has 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, all the
20 reasoning, all the conclusions that had been reached in prior appearances by other judges, that gave me the impression that the particular judge, in this case Colonel Luus, had personalised the whole issue by the mere %.-1
disregarding the previous judge's viewpoints. That is my
25 first reasoning here.
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. I have no idea what had transpired, --and by talking of any transpiration I'm
30 actually jumping the gun to point 3 here, but I have no
.... ... t..
idea for: second point what had transpired prior to my
marching into court on 24 June, and so as to evince of
going • about what I could call an emotionality Oh-the part
of the judge, when I was addressed in respect the 35 appearance that is being heard today the 10th, whereby the
judge issued these words, "or words to that effect." That
2062-0/Phiri0:0
20 whether I'm prepared or not prepared .I will be triO_PPJ he 10th.
Words that went "or words to that effect", whether I have the documents I need as per my prior request for clarification of charges, whether I have those documents or
5 not I'm being tried on the 10th
Words that went "and/or words to that effect" that whether my defence counsel was prepared or not. Those words were so confrontational to me that I actually resorted to writing a grievance_ about it, because
-•
10 I think I must also put it on record to the court does he follow me down, without going into such sensitive issues of whether the charges against me are premature of course, but the whole matter has done a lot of reverberations outside the court as well. And I have been subjected to countless
15 mis-treatments that people who thought they have a right to find me guilty, even before I'm heard by the court. For the judge to act and
speak the way he did, for me it rankled in my mind that it's part and parcel of the victimisation that I'm facing outside at the hands of
20 senior generals of the ... especially the army.
I was convinced, and it's still my
conviction that there could be some, with due respect to
the judge, there could be some invisible ropes that could
be manipulating, or pressures, some of them political, some
25 of the militarily that could be, are being brought to bear on the judge-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 victimisations that I'm suffering.. And it was a letter
30 written actually to the State President because even the
Minister of Defence had a foot Hntb• taking my Vidtimisation a reality.
Now, the third .. point then, which I
alluded to on my second point, had to do with the general
35 mistrust, for a start; that the accused in the military
tend to have where defence counsels of the military are
20152-0/Phiri(v0
appointed in the sense that the viewpoint that is held -and I have had no occasion to see otherwise. And the viewpoint, Judge, is defence counsels in the SANDF generally work under, one way or the other, a directive of
5 the institution. And there is nowhere as the accused for you to be sure that your defence counsel does your bidding, except to be there most, if not all of the time. He has discourse with the court, with the prosecution, et cetera. And for the 24th's appearance for me in June 2003 that there was
10 more time spent between the court, or the judge, as I don't know really what transpired, and my defence counsel in my absence, let me say 20 to 30 minutes where apparently there Was that discourse. For me it did create a lot of suspicion that either my defence counsel is being "brow-
15 beaten", is being forced to accept positions that I never instructed him. And my instructions to my defence counsel. are very clear.
And, if it pleases the court, I can just summarise them, what my intention is in this ensuing court
20 battle, it is to expose the favouritisms that are taking place, especially in the army, insofar as :outting across discipline, whereby soldiers, and especially officers are not disciplined as per their offences, but they
disciplined as per, put bluntly, the former force where
25 they come from. This is why it's .. . (unclear) ... I
instructed him 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 ... that my intention is to point out that .the .very.trial that.I'm going through is a
30 form of victimisation, for my outspokenness and my
boldness, when things go wrong. in speaking out.
For that reasons, Judge, to sum up for him now to end up.being• on• his• own, and basically fighting a battle for about 20 to 30 minutes on 24 June when I was
35 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. What I've said, what I've done, now for him to fight now I felt it was unfair, and I thought the judge personally did something which was uncalled for, especially when you look what the previous
5 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 minds. I want the rest to be fair point on that at a later stage, Judge. I do not know if I'll be open to questions,
10 or if Colonel Simelane wants perhaps jog my memory where I might have forgotten something, but that is the ambit of my request.
JUDGE: Thank you. But it's obviously in the
hands of your counsel. Colonel Simelane, olease continue
15 if you have any further questions to put to your client. DEFENCE: Yes. Who is this then in
particular, just for the record, against whom you have written this redress of wrongs, and again=.: whom you are unhappy with him conducting your trial?
20 ACCUSED: It is Colonel H LuUs, the oresiding judge
at the moment.
DEFENCE: That is the evidence, Judge.
JUDGE: Thank you. Madam Prosecut3r, any
examination?
25 PROSECUTOR: As it pleases the court, Judge.
CROSS-EXAMINATION:
PROSECUTOR: Colonel, on 24 June was :his the only
time that ycu appeared before the said judge in court? ACCUSED: If my memory serves me well it- visn't for •
30 the first time.
PROSECUTOR: For the first time?
ACCUSED: Nein, nein.
PROSECUTOR: Not for the first time?
ACCUSED: It wasn't.
35 PROSECUTOR: 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?
ACCUSED: Ja, I think that's a fair way to put it.
PROSECUTOR: Were there any problems from the said
5 judge to postpone the matter?
ACCUSED: 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 the judge handled the matter. In
10 fact the only problem, and the only time I faced the problem was on 24 June 273 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
15 misleading that is going on here about postponements. That includes the postponements Madam Prosecutor is referring to. Former 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 former charges
20 were handed to me.
PROSECUTOR: Okay, Colonel, can we just stick to the
postponements here. Thank you, Colonel.
ACCUSED: I am actually laying the around of the
postponement, Ma'am,
25 PROSECUTOR: Okay, I just must ... my only question to
you was to you, were there any problems ...
ACCUSED: 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.
30 trying to saying here is the court has all along, today, -previous I think the last' two as well been hearing
evidence that all postponements were due to my request for
documents, and personally I think- it's' not true betause the
other postponements, including those ones you are referring
35 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 as yet. Thank you.
PROSECUTOR: Thank you, Colonel. Colonel,. you also
appeared before the same judge on 26 February 2002, if you
5 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?
ACCUSED: Ja. Obviously my reading is it's because
10 at this stage he had not yet discovered by then that the documents I'm requesting 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
15 the pressure to bear on, I think and have a feeling of that they put pressure to bear on the judge, hence he ended up acting the way he did lastly.
PROSECUTOR: Colonel, is there any grounds that you
believe that there is animosity from the side of the judge 20 towards your case, the facts of your case?
ACCUSED: I'm not so sure about the facts of my
case because I don't think we've arrived there as yet. don't know. Perhaps if you clarify "facts of my case." PROSECUTOR: So do you agree with me that the-judge
25 will not have, at this stage, any facts regarding your case?
ACCUSED: I wouldn't know. I have a rood suspicion
he does.
PROSECUTOR: You've got a suspicion?
30 ACCUSED: He does, considering like : 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
...... ..
35 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 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 he's being
5 put pressure on. PROSECUTOR: suspicions, ACCUSED: substantial
So that's only on your belief
10 PROSECUTOR: Written proof, Colonel.
ACCUSED: Written, from whom?
PROSECUTOR: Colonel, is there when you stated
that your defence had discussions in court without you
being present, am I correct that you gave a mandate to your
15 defence counsel to act on your behalf? Is that correct? ACCUSED: 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 ... (unclear) ... everything for the trial, but I think the fact that I'm here, participating,
20 hearing arguments, it's one of my rights for justice to be seen to be done.
PROSECUTOR: Okay. Do you believe that =e will act in
your interest, Colonel, your defence counsel?
ACCUSED: I want to make sure. I've raised, Madam
25 Prosecutor, the general . . perhaps it's a misconception but we're talking about careers •f people here, that defence counsels of the SANDF, well the jury's still out on them, whether they can actually have their own say. I've
raised that earlier on.
30 PROSECUTOR: Thank you. No further questions, Judge.
JUDGE: ReexaMination?
DEFENCE: No re-examination, Judge.
JUDGE: Thank.you.
QUESTIONS BY THE COURT:
35 JUDGE: Colonel, you have to understand that your
perceptions, and the court is sitting with the oredicament,
2062-0/Phil*O'
and I will try and avoid that predicament because irrelevant of the way Colonel Simelane chooses to present his application, the court has to make a finding. And the way he chose to make this application might involve certain
5 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 concern presently, the way it's presented to the court.
Secondly, there is also the more real
10 substantial problem is 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
15 arose from that information. The court cannot get involved in an• attorney/client relationship, or enquire sub-
stantially 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
20 case, the court's hand's are bound in certain oarameters not
to enquire into it, because I cannot eno-uire into the client/attorney relationship. You understand that?
ACCUSED: Yes, I do, yes.
JUDGE: Now, just to get back to certain aspects,
25 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 underslanding is it should be for information for the person concerned as well, nothing..has reached me. You have.formulated it.
30 notified of this redress of wrongs? Was I
- • •
Because leave the redress of wrongs and the substance jUStfor the moment, I'm more concerned about a collateralis
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
35 redress of wrongs against me, this is something, which
don't even know about, and I would like to clarify the issue whether this was addressed to myself as well.
ACCUSED: Ja, it is indeed, but then General
Masters has said you are the presiding judge, you ought not
5 to read it, so it was a bit strange to me to hear that too. 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
10 understand as well, but I'll get to that stage. All that I
this was not addressed to myself? You
It was, Judge. I personally addressed it
to yourself and formally sent it to yourself as well.
15 JUDGE: Okay. I haven't received it. I can put that on record, but what I did receive is a letter dated by Colonel Simelane himself, in his own capacity, 20 August addressed to the accused, myself, to the Minister on an administrative level, and I'll deal with that as well. Is
20 that the one you're referring to?
ACCUSED: Yes, I take it Colonel Sim=lane's writing
you're referring to was the execution of the requests I made in that redress of wrong letter?
JUDGE:May I just show it to you? Read it
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 LutiS isalready privy to the
prosecution case." In oth,Lsi- 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
35 would appear that Colonel LuUs 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
5 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
10 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
15 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
20 three months were given to give you sufficieno 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
25 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?
30 ACCUSED: I understand your reasoning, Judge, and
if you so allow me; "I will reSpOnd.
JUDGE: Please do. I would like to hear it.
ACCUSED: • Judge, first point out of two, it is my
understanding that all the postponements that have been
35 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
5 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
10 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
15 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.
Withouto f the
jumping into the details
20 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 .
JUDGE: Okay. Sir, you're wanderingoff from the
... it's a simple question I've asked you.
25 ACCUSED: I'm trying just to make it clear, Judge,
that I would like please .
JUDGE: Well, I would like to ask it again
because it seems that you don't understand it.
ACCUSED: Judge, I think there is a precedent here,-
30 with due respect.
JUDGE: Sir, just listen to me. The question was
not about the documents. Not what your perception was on
•the 24t11- We'll get to the document stage. It's the third,•
category, your learned counsel has indicated to the court,
35 the question was pertaining to your concern in this letter, which was drafted by Colonel Simelane, "the reasoning" and
2062-03/Phiri(v0 . .
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
5 there had been some ... for lack of a better word, friction while I was outside.
JUDGE: relevant ACCUSED: Interesting. Were you dealt with, at all times, courteously?
Very courteously, Judge. And I'm saying
10 this now for the second or third time, never before in my appearances had I been treated like I was treated on the 24th.
JUDGE: And your concerns pertain to this line,
this sole "When this matter comes up on 10 September 2002, 15 this court will proceed with your trial with or without
your defence counsel", if I ACCUSED: Not just
understand you correctly?
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
20 don't know what arguments were taking place. And I .
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,
25 what the factual status is and regarding the law. You
understand? So I cannot go into that.
DEFENCE: I can assist the court by telling the
court what I told Colonel Phiri, that among. other things
30 JUDGE:
•his • right, because as defence coUnSel'yOU're not
don't have the election to decide for your client what he's going to divulge to the court or not.
DEFENCE: Okay, if he doesn't want me Io do that he
35 will let me know, but as I ...
JUDGE: Do you need a short consultation to
establish what he's going to allow this court to hear, or not?
DEFENCE: I'll pleased then if the ...
5 JUDGE: Is that not be the more appropriate way?
DEFENCE: No, not necessarily because I have a full
mandate when there's conflict on, you'll never resolve this point.
JUDGE: Okay.
10 DEFENCE: Obviously I know what I told him ...
JUDGE: Let's hear it in argument then.
DEFENCE: Yes.
JUDGE: Because once again this not the stage.
Thank you. Colonel, you are also concerned about the
15 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
20 not going to deal with it. It's called Potslie's-tase. 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
25 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 oth r grounds beside that? ACCUSED: No, Judge.
JUDGE: Okay. Thank. you__ Any questions arising
30 out of the court's questions from the defence side?
QUESTIONS ARISING. FROM QUESTIONS BY THE COURT:
DEFENCE: 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?
_ .....
35 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.
DEFENCE: Temperament. Is that what you saw?
ACCUSED: Defence Counsel, if you're asking about
5 the particular dates, I'm referring to 24 June here. DEFENCE: Okay, no further questions.
JUDGE: Thank you. Prosecution, do you have any
questions arising out of the court's questions?
PROSECUTOR: None, thank you, Judge.
10 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
15 counsel. At this point in time I would like legal argument on this application please. Please proceed when you're ready ...
DEFENCE: Okay. As the court pleases.
20 ADDRESS ON JUDGE'S RECUSAL BY DEFENCE
DEFENCE: 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.
25 JUDGE: Which law are you referring to, and which
cases are you referring to?
DEFENCE: Sorry. I'm referring in particular to
the SARVU case where the question of recusal was dealt with at length.
30 JUDGE: What were the end results and the
findings in that case?' Can you just put it on record?
DEFENCE: 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
35 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
5 Mandela's place he . the President was biased. 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
10 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
15 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 byof
reason
institutional bias that his cas,,,, is so intricate. Has gone
20 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,
25 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. There. was
30 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
35 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
5 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."
10 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
15 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.
20 JUDGE: Sorry. Let's just correct it as you
along. I don't want to ...
DEFENCE: Yes
JUDGE: . impose on your though: pattern
but the court never dealt with the request for.
25 transcription and the court's position is not to deal with transcription issues.
DEFENCE: 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 ...
JUDGE: Not.to the.court?..That's-what I'm trying
DEFENCE: transcribers. 35 JUDGE: Not to the -courti..to• •the respective=
Thank you. Please proceed.
2062-0/111:60/0
DEFENCE: Jo, and they've responded accordingly
that as soon as payment has been done ...
JUDGE: The court would not know about it.
DEFENCE: Yes, the court would not know ... the
5 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 ...
10 JUDGE: Please proceed.
DEFENCE: 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
15 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
20 constitutional rights. All constitution rights we're
talking about a fair trial, with respect, Judge, just for easy reference and to
JUDGE: Sorry. While you're on constitutional
rights, just
25 DEFENCE: Yes.
JUDGE: let's deal with this toint. 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.
30 these postponements (1), so the law of paying your attorney
or your counsel would—stop any outside person going into
one ...
DEFENCE: .(unclear)
JUDGE: after another postponement on these
35 aspects? And secondly, is it not then a concern ... I will ask you to answer that first and then the second concern is
2062-03/11-iiri(v0
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
5 we're starting one case after another not reaching the plea stage over numerous months even years?
DEFENCE: The court must have done a serious
injustice to the present accused, Colonel Phiri. If I ... JUDGE: I haven't made a finding. I'm asking you
10 a question, Sir.
DEFENCE: If those utterances were made on the
basis that we have misconceptions about his defence counsel in other cases, you know ...
JUDGE: No, I'm concerned because we're already
15 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,?
DEFENCE: I don't know really what have to
20 explain because, Judge, if I have to explain why this case is commencing on 10 September instead of the previcl.:.s 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
25 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
30 counsel was made ... put under the impression that .
JUDGE: deal with the documents at'
....... a.
•suitable time, Sir. Do you understand my question?
. DEFENCE. You want an explanation, Judgef•what• is
clear and what you want to know why the case didn't start
35
(End of tape 2)
(Transcription commences on tape 3)
... all the times, is that ...
JUDGE: Thank you, Sir, please proceed.-
DEFENCE: Ja, that's why the case didn't start.
5 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
10 to reach this fair trial, the constitution in these stages. JUDGE: Please proceed. I'm listening.
DEFENCE: 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
15 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 tr, be required, to be furnished and therefore submits to get it through the avenue as indicated on 24 June 2002, the judge
20 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
25 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 adeq..late time and
• facilities to prepare a defence."
30 I'm therefore saying, Judge,
JUDGE: Sir, sorry• before• you. step • off that
point I would like to hear you on the relevant case law on this point.
DEFENCE: Judge, with respect there is a
, .
35 (unclear) you shouldn't be ... (unclear) . of case
law, but if it's for interest sake you have the trouble
2062-03/m-660,0
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•ii usually called a docket case that even the prosecution should make,
5 she should open this docket and have given the accused all the relevant dockets ... (unclear) ..
JUDGE: You're referring to Tshabalala's case?
DEFENCE: The Tshabalala's case is there, but the ...
JUDGE: What did Tshabalala's case say?
10 DEFENCE: But here's a document, Judge, I'm talking
about the constitution.
JUDGE: I'll get to that. We're not dealing with
in prematurely, we'll get to that application, Sir.
DEFENCE: 15 JUDGE: Mm.
But just for the record, what did
Tshabalala's case say?
DEFENCE: Tshaba it's a well-known docket case
stating that the accused will have all the information, which the police would have in the docket ..."
20 JUDGE: That's not what Tshabalala's case said.
DEFENCE: Oh, your interpretation is not their
interpretation but it what to say ...
JUDGE: Was it not so that they precluded certain
divisions?
25 DEFENCE: 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 ...
JUDGE: Okay. Please proceed. We'll deal with
30 documents at the right stage. I will hear you on that. DEFENCE: Ja, yes, at..a.later stage, yes. Ja.
JUDGE: Please continue. Your application in
this regard is still, if I have to remind you, the request for recusal of myself,
DEFENCE: 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,
5 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.
JUDGE: Thank you, Sir. That might be
10 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
15 on a double reasonable criteria?
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
30 close and that the change of circumstances, call it the
rationale, as to had so changed that along, from last year year being under the
things
in fact these documents, which all to use the witness's words,'from last impression that these documents are
35 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
5 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 termsthe
of law, as given by constitution and in terms of statues ...
10 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"
15 it's objective criterions.
DEFENCE: 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
20 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.
JUDGE: Okay, now getting to the objective
25 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..
30 criteria according to the constitutional court5
cases,
objective.
DEFENCE: Yes. Okay. I'll go with- the court now
because I'm basically abandoning this argument, which I was .....
working on in terms of ...
35 JUDGE: Please don't.
2062-0/PMr4v0
44 DEFENCE: . the biasness, 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
5 me to address it on something else. I'll ...
JUDGE: No, please don't abandon your argument.
DEFENCE: Yes.
JUDGE: I'll sit here the whole day if need be,
to hear your argument because I'm concerned about this 10 issue, ...
DEFENCE: Oh!
JUDGE: ... it might be contempt of court
DEFENCE: Okay. I won't get back on the personal
interest if ... (unclear) ... referred to then. You want
15 me to finish that one?
JUDGE: Yes, please.
DEFENCE: Okay. So ...
JUDGE: Please, we don't want to ha7per you.
DEFENCE: Thanks. Okay. Thank you. What I must
20 now add that the judge has clarified that point nicely that in fact we're dealing with objective issues.
JUDGE: Sorry. This is not my judgement. You
understand that?
DEFENCE: Yes.
25 JUDGE: That is the constitutional court case ...
DEFENCE: Yes, it's constitutional court matter .••
JUDGE: ... In SARVU and in Sukavo?
DEFENCE: Yes. Thanks, Judge. What I'm saying
there is that by making that objective thing, for reasoning 30 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.
35 JUDGE: Based on what?
2062-03/Phiri(vt)
DEFENCE: The fact of the 24th, Judge, are known
to this court, it's a question of the statements now
court
made.
JUDGE: Sorry. Just bring it in relation to my
5 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
10 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
15 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,
20 which is objective. But I think I've given you enough
guidance, so please address 7-7,, now properly.
DEFENCE: 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
25 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
30 long as more than three months ... (unclear) ... because if
those documents are not there, those necessary documents
that are required ...
JUDGE: Would that sorry, Sir, and I'm not
going to interrupt you again. I'll try my best, but you're
35 wandering off on a very important issue. Would that not
have been reason to address a new postponement instead of
2062-03.1Thiri(vt)
47
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
5 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,
10 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 15 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 wer.=, to be mad.e 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
25 prepare for his defence. These are all fundamental rights enshrined in the constitution. Now, I'm saying on ...
JUDGE: Sorry, what is the case about?
L
start with the case. I'm not even sure what the chaertg::
are against your client. Objectively speaking, what is the. 30 case about?
DEFENCE: Which case, Judge?
JUDGE:' • This case of Colonel Phiri, what is it
about?
DEFENCE: The case ...
35 JUDGE: HOw many charges?
DEFENCE: About seven, Judge.
2 062 -03/Ph i ri (vt)
JUDGE: Pertaining to what?
DEFENCE: They pertain to events at the army
college.
JUDGE: What are the allegations?
5 DEFENCE: When he attended the junior command and
staff course.
JUDGE: Ja, 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?
DEFENCE: No, it's ... you know there was a so-
called incidence of racism and the markings.
You
there were differences when they were arguing anclsuay k:::
markS allocated in a particular way, which could be read
15 with section, it could be racism, sexual favours and those kind of things.
JUDGE: Yes, let's forget about racism .
DEFENCE: Now, .
JUDGE: at this point in time.
I'm asking
20 you a simple question.
DEFENCE: Yes.
JUDGE: What are the charges against him?
DEFENCE: Well,
the charges arising from there is that some of his superiors are not happy about
25 allegations, and they're saying (unclear) those
subordinate.
JUDGE: Insubordination? Is that the charges?
DEFENCE: Of course, ja,
JUDGE.: Okay. Insubordination?
30 DEFENCE: Yes, arising from saying that sexual
faVours had been granted against . (unclear)* ... student,
so many marks here, they . (unclear) ... negotiate the
marks ...
JUDGE: But insubordination surely is a matter
35 for evidence, or not?
- _
2062.03. Pniri(vt)
DEFENCE: Ja, 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
5 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 tl-lat report by the IG is very relevant in those circumstances, when one
10 talks about racism, one talks about marks being granted between the pillows to say one would, as I say,
JUDGE: Let's just analyse what you're saying.
DEFENCE: One is being subordinate.
JUDGE: I would like to understand your way of
15 reasoning.
DEFENCE: Yes.
JUDGE: Let's analyse what you're saying. If
there was an investigation that would have been
administratively, it's not a judicial investigation.
20 DEFENCE: It but it's an official
investigation.
JUDGE: I'm not asking you a difficult queStion,
Colonel.
DEFENCE: Yes.
25 JUDGE: I'm asking you a very simple cuestion.
DEFENCE: Mm.
JUDGE: Do you agree that it's an administrative
official investigation?
DEFENCE: Yes, it was not a
30 JUDGE: It's not a judicial
DEFENCE: . Yes: No. ...
JUDGE: investigation.
DEFENCE: Ja, it was an officer of the SANDF.
JUDGE: Yes.
35 DEFENCE: I think it was a Moshoana who's an IG of
the army who investigated that and he submitted the
2062-031Phiri(vt)
documents on that investigation. Over all these incidents
.. (unclear) ... it will take about three or four (unclear) ... charges on those matters. And ... •
JUDGE: So whatever opinion is formed in that
5 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?
DEFENCE: Precisely. If that IG report, if
h
10 report on the facts of it the court will be dealing twi:h 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.
JUDGE: Yes, but you can ask that in _c;-(s-
15 examination to that witness.
DEFENCE: I don't have those documents. I don't
have the IG documents.
JUDGE: Then you can ask him to provide that
document and if need be the court can compel him to provide 20 that document ...
DEFENCE: Oh!
JUDGE: if it's relevant to
if, for example, I'm walking across now ... DEFENCE: Yes.
25 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
30 judicial observation during the trial, and conclusions surely should not be subordinate to a document?
DEFENCE:
JUDGE: No.
It's only a factor that the court will
consider during the trial, not so?
35 DEFENCE: Yes. (unclear) . Judge. Judge,
with respect, you know the IG was intervening,
2062-0[Ftir.00. ......
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
5 official version of the facts we would know that we would go this far ...
JUDGE: I'm still I still don't understand
what your reasoning is, but please proceed.
DEFENCE: Yes, the point I was therefore making,
10 Judge, if now I remember correctly there is that all what I've made here is that now that IG 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
15 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.
20 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 ...
JUDGE: Okay, let's deal with documents.
25 understand your reasoning
DEFENCE: Yes.
JUDGE: at the beginning, at that stage,
you're still confusing the issue.
DEFENCE: 30 JUDGE:
this stage. DEFENCE:
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 therefor; 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
2062-03/Phiri(y0
relevance here now is that if Colonel Phiri was from . was then, all along from last year under the impression that we are in adidem prosecution and the court, it was the same court today in which ... (unclear) ... If we were of
5 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
10 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
15 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:
20 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, Yest-
25 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
30 Information Act and you only recently got an answer from that.
DEFENCE: Yes. j\ItAi,. the judge should not now
really ... these are not matters of• speculation, Judge.
Before defence counsel was instructed to represent Colonel ....
35 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,
5 I ... here is Major Boshoff, prosecution counsel I asked him, "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
10 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.
JUDGE: Yes, but let me refer you, before ...
15 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: DEFENCE: 1996(1)?
20 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.-..."
25 ... 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-
30 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 35 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.
DEFENCE: Can I pose a question, Judge? A simple
5 question. Have, in this case, any merits of the case been looked at, to your knowledge?
JUDGE: In ...
DEFENCE: In this particular case. Have we gone
into the merits of this case?
10 JUDGE: We haven't even started with this case.
DEFENCE: 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
15 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
20 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
25 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
30 relief is that prosecution, because the trial has
commenced, must provide those documents.
Now, I can't really get to Major Botha, her superiors in the prosecution and say, "March to-the. army college. Meet General Romano and say, "General
35 Romano, 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.
JUDGE: You see, you're misunderstanding the
5 whole point.
DEFENCE: Mm.
JUDGE: You're misunderstanding the whole point.
DEFENCE: With which did I misunderstand now?
JUDGE: With all due respect, that's why it's my
10 concern. The concern is that surely you need to prepare, granted. Let me ... listen to me please.
DEFENCE: Ja, we need to prepare indeed.
JUDGE: Obviously you need to prepare.
DEFENCE: Ja. Mm.
15 JUDGE: But if the facts would still need to be
judged, whether the charge sheet is so complicated that you cannot prepare without thesa, documents, that is the matter that we'll deal with when you make the application for these documents. You understand?
20 DEFENCE: I know about that.
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.
25 DEFENCE:
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
30 prepare, due to the fact that this and these documents were reqUested. 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 the'court's
• 35 assistance for an order to be made that those documents be brought into court and then in cross-examination we'll
2062413iPhiri(vt)
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
5 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
10 stopped the whole procedure if you have started your remedies.
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
15 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
20 requests would be replied to." At the end ci the day,
that
was the reasoning of the court. You understand? DEFENCE: Judge, really it's very problematic
because the judge wants to can judge one hand, one
it's the prosecutor ...
25 JUDGE: That's interesting. When I was
can't recollect that I was a prosecutor, but anyway
DEFENCE: At the same breath ...
JUDGE: Yes.
DEFENCE: ... just the statements the court was.
30 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
35 at certain stages. It shouldn't say ... you know, Judge,
in certain countries in Europe'... (unclear) ... where they
2062-ofpiliriolo
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 ...
5 JUDGE: Sorry, just for the record.
DEFENCE: Yes.
JUDGE: Let's put it in perspective, Counsel.
DEFENCE: Yes.
JUDGE: We've got a different system in .South
10 Africa, not so? You know about that?
DEFENCE: Yes, but ...
JUDGE: Did you know about the trite HoHard case
that ...
DEFENCE: ... the Constitution ...
15 JUDGE: Ja.
DEFENCE: .. (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 may be there.
JUDGE: No. .
20 DEFENCE: We say what
JUDGE: Counsel, listen to the court please,
DEFENCE: Yes.
JUDGE: .. because we have a miscommunication
here. You're referring to another system of law ... 25 DEFENCE: Uhuh?
JUDGE: ... which is not prevalent in South
Africa, number 1. Any inquisitories, acquisitories
DEFENCE: Mm.
JUDGE: You agree with that?
30 DEFENCE: Yes, Judge.
JUDGE: Okay: So. •it might confuse the aSSeSSorS
who don't have knowledge about the differences. Secondly, we're referring to.the constitution, but the constitution dealt with the right to have insight into the police docket
35 in Tshabalala's case, within certain parameters. You
understand that?
DEFENCE: Mm.
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,
5 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
10 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.
DEFENCE: The logic is here, Judge, in that you
want to tell us ...
15 JUDGE: Objectively at all times ...
DEFENCE: Mm, ja.
JUDGE: objectively *the documents can be
argued, at any stage, and the court can be asked for
assistance. Not so? Now, I'm asking you why ... you want
20 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.
25 DEFENCE: 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
30 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, yoil know, you can't delay, if you want to proceed. The question is with respect, the court is just overlooking the constitution.
35 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.
The court has not charged this gentleman
5 here. It has not charged him, so the court, if the court was not, biased, it takes us back to the question of biasness, 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
10 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
15 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
20 must take it gracefully. It's not a personal affront. 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
25 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.
30 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 . - I - believe, we are of one
mind that if really it's beyond perception, beyond
35 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,
5 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;
10 "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,
15 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 ..." We should be human beings and, you know, accept certain things and say, "Look, let me not
20 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.
25 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 ,cione, It will go. about to say, ."I was
30 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. The court
should ask itself and say, "Look, can it be really that I
35 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
5 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,
'10 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
15 already bound, chained by the court's orders that this case will continue.
So we cannot be expected to come and asked for postponement. We can play the order. These are not perceptions. The man sees biasness here, "I must go to
20 the slaughter here" and they've got the man to do it. I'm sure as Colonel LuUs, 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
25 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
30 over (unclear) and say "Anybody can ask me any
questions you want•to. I really feel strongly about this:"'
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 35 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
5 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
10 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
15 brother and to take it up from there.
JUDGE: Thank you. Anything else?
DEFENCE: No, there's . nothing, Judge, unless
there's something else you need from me.
JUDGE: Thank you. Madam Prosecutor, do you wish
20 to address the court on any aspects?
PROSECUTOR: 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.
25 JUDGE: Thank you. The court will give a body
break at this point in time. All persons back in court.
It's nearly lunchtime in any event. Do you wish to take
lunch, Counsel?
DEFENCE: Yes, please.
30 JUDGE: Okay. All parties be back at 13:15
please. Will that suffice?
DEFENCE: Yes, Judge, it will—suffice, Judge.
JUDGE: Colonel, just.-.stand-. there please.
Colonel, be back at 13:15 please. We're just going to hear 35 arguments from the prosecution's side and then the court
• 63
will adjourn to give a finding in this matter. You
understand?
ACCUSED: Yes, Judge.
JUDGE: Thank you. Please be back.
5 (Court adjourns)
(Court re-opens)
JUDGE: The court is in sitting again. We had a
lunchtime adjournment. At this point in time, as the state ... is the state ready for its submission to the court?
10 PROSECUTOR:
JUDGE:
PROSECUTOR: That's correct, Judge.
Thank you. Please proceed. Thank you, Judge.
REPLY BY PROSECUTION
15 PROSECUTOR: Judge, after a lengthy argument by the
defence whereby I believe the other factors on objections were, in a way, also addressed, which we are not supposed to address at this stage, the prosecution would just have to set certain facts, and also have to place on record
20 regarding these aspects, which I will address
accordinglV defence argued in choosing to regarding its or would. argue through by the
accused, there was no direct argument regarding in terms of Rule 35, Rule 36, it's only assumptions made, or the prosecution's perCeption of the facts and matters that were addressed by the accused, which .he. .bas.ed his objections on,.
30 Namely, Rule 35(b) that the judge might have, or during the trial gains such knowledge. concerning-the facts of the case to be heard by the court that his or her decision is likely to be prejudiced-thereby. •
Furthermore the perception by the
35 prosecution that the objection was also based on —
(unclear) . any accused or during a trial develops
...
2062-03/Phiri(vt) .....
towards an accused such animosity as is likely to be prejudice to his or her decision. It was rightly inferred by the court that in the Sarvu case attested.objecti_yely, and objectively in the sense of the reasonable informed
5 person to make a decision, a reasonable apprehension on if the judge would be impartial or not.
In this regard, Judge, it is the
respectful submission from the prosecution, to boil down to
the core matter in front of the court, without getting
10 bogged down into the collateral issues regarding documents
as this is the argument or objection proffered by the
defence, to be added as a third objection in this matter in
front of the court, the prosecution is of the submission
that the perception by the accused was based on a one-day
. • ""
15 appearance for a postponement. There was no basis laid
down that the court, or the judge had any personal interest in the facts or that the judge might have knowledge regarding the case that is supposed to be in front of the court, or the facts that pertaining to the charge in front
20 of the court. The judge himself also required from the defence what are exactly the charg,es, confirming the fact that the court is not even au fait with what the charges are in front of the court today of Colonel Phiri, having, in this instance, no knowledge or-personal knowledge regarding
25 the facts or the charges in front of the curt.
Furthermore, the biasness by the accused
could not be explained or objectively looked at, based on
facts or situations, which would bear down, or boil down to
biasness by, or any-animosity by the judge in- this regard.
30 It was once again, by mere perception of, as described by
the accused by a blushing or a flushing of rednesS, ' WhiCh
is a subjective perception of what is the situation bnthe
24th, and there's no factual basis for what reasons there
are objections against the judge regarding knowledge and
35 personal knowledge or biasness. in regards to the charges that are laid against Colonel Phiri.
2062-0,Thiri(v0
It is also the prosecution's ... although this will be dealt with later, but the documents were argued by the defence, and the prosecution would just like to clear this matter up to clear any misconceptions and
5 misperceptions regarding the documents. In the first instance, at no stage was it in written or in oral communication confirmed that the prosecution is adidem that the documents are relevant to the case, and this was also confirmed, never in writing that the prosecution was adidem
10 that the documents are relevant, therefore the prosecution would just like to clear up this situation that the prosecution is not adidem that these documents are reltvant_- in the matter before of the court. But the prosecution
would now not like to enter into that argument at this
15 stage, regarding documents, as that is a separate objection
that was entertained by the defence. I would therefore just like to clear up this situation regarding the document situation.
Judge, it isth
then respectful
20 submission that objectively judging the arguments that were put down by the defence, regarding biasness and/or then knowledge regarding the facts, that the court has to decide on, and the facts and the charges against the accused is a reason for recusal for the judge, the prosecution is of the
25 submission that there is no basis laid for this and in judging, and as rightly confirmed by the judge in terms of the Sarv4 case. That is then the submission from the prosecution. As it pleases the court.
JUDGE: Thank you, -Madam Prosecutor. Are there
30 any points, any legal points that you still have to raise, Counsel?
REPLY BY THE DEFENCE
DEFENCE: Yes, Judge. It is just a matter. of
35 arguing backwards and forwards because my .learned friend informed me that she had tried to get those records and she
did not succeed. Hence, her subsequent letter to us by her senior, Colonel Botha, to say we must do that kind of ... of using the Information Act, that would not have been the case, if those documents were not necessary.
5 JUDGE: No, I'm asking legal points, not factual
points.
DEFENCE: Yes, I'm just replying to what she ...
JUDGE: Legal points, you have a right to reply
on legal points. I don't have to teach you court
10 procedure.
DEFENCE: And also the ... and also arising from
the questions from the court in reply to my learned
friend's submission on concrete matters, that the concrete
and objective matters upon which the application for
15 recusal is made it has adequately been made by myself and by the accused ...
JUDGE: Sir, you're arguing on factual matters.
You understand that on reply that you're only allowed to argue on legal matters? Do you understand that, or don't 20 you know that?
DEFENCE: I know that, Judge.
JUDGE: Why do you do things differently?
DEFENCE: No, I'm not doing it differently,
otherwise I will ...
25 JUDGE: Legal arguments pertaining to case law
and/or interpretation of statute, so surely you should reply to me on that; not on factual aspects.
DEFENCE: No, I'm replying on her argument.
JUDGE: No. Only pertaining to le;al.arguments,
30 are you allowed to reply. That is the position in South
Africa,
DEFENCE:.......
Yes, she has been giving legal arguments
and I'm replying to those legal arguments.
JUDGE: But you're addressing facts, you're not
35 addressing the law, stating that your colleague is
incorrect because the case law she quoted was incorrect, or
67 because there is other case law on this and this point. That is her reply.
DEFENCE: She didn't quote any law.
JUDGE: She did quote the Sarvu's case,
so if
5 there's a different interpretation, for example,
on the Sarvu case that you do not uphold, then you have to say, "But, Honourable Judge, this colleague of mine quoted this and this but it's out of context because the Sarvu case also referred to this and this, but in other cases this
aspect
10 has been dealt with and so." That is legal reply, Sir.
DEFENCE: (No reply).
JUDGE: That's not what I'm saying. This is what
case law states, not my interpretation, Sir. That's why
I'm asking, why do you address me on facts again?
15 DEFENCE: (No reply).
JUDGE: Is there anything else, Sir, on legal
arguments? I'm going to give you a final opportunity.
DEFENCE: (No reply).
JUDGE: Anything that you want to place on record
20 in terms of legal argument?
DEFENCE: Yes, I think I want to say-.
JUDGE: Please do.
DEFENCE: Yes. Judge, the legal arguments
putting, are legal arguments arising from - the Sarvu case
25 upon the objectivity I would submit the statements by mY learned friend that we have not submitted objective grounds for recusal is incorrect.
JUDGE: IS there anything .else,. Sir?
DEFENCE: Can I •illustrate -- therefore the -word' -
30 "incorrect" means?
JUDGE: That would be factual, Sir, that's your
......... .
interpretation against her interpretation and we had a chance and we -heard'ybUr-argument. Now it's only confined to legal arguments.
35 DEFENCE: I've got no submissions.
68 JUDGE: Thank you, Sir. The court will adjourn to properly address all the aspects in front of this court pertaining to the first application, and to have proper time to consult with both assessors to also discuss
this
to this
5 and inform them about legal aspects pertaining
issue. The court will adjourn.
(Court closes to consider finding)
(Court re-opens)
10 FINDING
JUDGE: The court has carefully listened to the
application of Colonel Simelane on behalf of his client, and the court has listened carefully to the submissions made in this regard by both the defence and the prosecutor.
15 Now, due to the time of the day, the court will try and expedite this, and all the aspects the court has taken into consideration are notbe
going to
given, though this should not be seen as a numerous clauses
with all the reasons, but in the interest of justice the
20 court will deal with certain aspects to give clarity to all parties at least today in court.
First and foremost, without reply to all the allegations in Colonel Simelane's letter dated 20 August_2002, - and the non-reply should not be construed as
25 admission of the veracity thereof - there are aspects, which need to be clarified regarding this letter. It is normal court's policy that all participants in the judicial proceedings, including the judicial officers, counsel and so on refrain from anv.conduct including. comments, which -
30 exhibit bias or prejudice in any regard, and in this regard; might border on contempt of court:. 'Any person
•believes he or she has been subjected to such conduct may take the.matter on review, once the case is finalised; not as requested in this letter, referred to that the
35 administrative decision is made instead of a judicial one on review.
Therefore, Colonel Simelane's remedy is the judicial one in law and not proposed an administrative,
one. What the court's concern here is why is there an
incorrect request? If the request is incorrect being an
5 administrative request, for which they have no basis in law regarding the removal on an administrative level of the judge from a case, instead of taking the case to completion as the Constitutional Court and Appeal Court case law states and then take the matter on review, why does the
10 colonel apply for an incorrect process?
The defence counsel should only initiate concerns that are reasonably related to the matter at issue. The defence counsel shall not use concerns for the purpose of harassing, embarrassing or causing the South
15 African National Defence Force to incur unnecessary expenses as a means of delaying the timely, efficient and cost effective resolution of the military trial, or to obtain some sort of an unfair advantage. The defence counsel shall avoid repetitive and argumentative questions
20 or enquiries, questions or enquiries that are solely for the purpose of harassment or questions, and which are known to the Questioner to be bad in law. This same principle applies to applications made and, one would presume that the defence counsel should ensure that the allegations as
25 contained in his letter should not be an evasive or artificial manner designed to ensure, or attempt to avoid a trial, or to merely delay a trial.
however, the court, in this regard can refer to the extended reply by Judge. Hussein in case 108/2000.
30 on similar applications where the accumulation was stated in that case, the history of the 'whole matter indiCated
that the applicant was deliberately obstructive and
attempted at every turn to frustrate the proper hearing of
the application. Referring to Colonel Simelane's client at
. .
35 that stage, but referring at numerous stages where there was an application for Brigadier General Larney's recusal
or application regarding the record, an application for the chairman, Judge Hussein to be recused, very similar to what is transpiring in front of this court. And one might be stepping into the situation that that type of application
5 is the predominant way of what Colonel Simelane is doing in this case in front of this court.
I think one has to draw a distinction. One should differentiate those facts from the case in court today. Even if the judge was of the opinion that there
10 might have been a deliberate obstruction in that case, I can honestly find no reasons, after carefully listening to Colonel Simelane and asking him numerous questions in this regard, because the instruction of that court was case 108/2000 was that this is the unnecessary delay and
15 enormous ways of cost, this kind of conduct must be frowned upon and discouraged. Obviously it states that, "if similar facts come before another court these facts have to be carefully weighed whether it's also not deliberate."
The court has asked numerous questions to
20 Colonel Simelane. I'm of the opinion that there is an honest impression, both in himself and his client on material aspects, and I'll deal with that. Whether it's reasonable, according to the case law, it's a different subject matter, but I cannot see any reason that this was
25 not an honest application in this court. And the unfortunate situation is due to the facts of this case, and we haven't dealt with the documentation, it might be relevant to poStpone this matter once again, after getting confirmation, after. going through .the.process of applying
30 for certain information regarding the Information Act, which if I understand itt-ott.ettly, refer the colonel once
again to the state prosecutor, that will entail that we
will hear this application and that we will have to, in all
probability, once again give a postponement.
...
35 If that is the case, once again, due to
Colonel Simelane programme, which he initiated at the
initiation stage stated he's busy on a course, will in all probability be a month or two down the line, in the future. But I don't want to pre-empt what the court's-proceedings are going to be, but if that is the case, then in any event
5 it makes this whole application_for this judge today in this court a very expensive process. Because if we have to postpone this case two months down, in the future, to get proper documentation then this court will not be able to sit as a court in any event, because as is well-known in
10 the military community, in all probability end of November at the latest December, I'm going out of the defence _force: And I would not be inclined to take a part-heard matter, so where this is still pre-pleading stage, once a plea has commenced I will be forced to come back as a part-heard
15 matter in this case, and so in all probability, if this case is postponed for two months, it would not be feasible to put this case in front of me, in any event.
This court therefore has to deal
objectively with the application today about recusal of
20 this judge on the facts in front of this court as it stands today, not what is projected into the future. The objective criterion was there reasonable grounds for the judge to refuse, or to recuse himself, taking the allegations into consideration?
25 Now, starting with the defence case, it
is clear that I would have needed and required a basis why the defence elected to call the witness, or his client as a witness, first and foremost without laving a proper basis in law. That, nonetheless put a further predicament there,
30 because the court has a duty to objectively enquire into the reasonablenesSi which is the objective criterion, and the court could not do that to a great extent because it pertains .to. client, privileged information, between client and attorney.
35 Nonetheless there was apparently a
redress of wrongs, which the court did not get hold of or
71 initiation stage stated he's busy on a course, will in all probability be a month or two down the line, in the future. But I don't want to pre-empt what the court's-proceedings are going to be, but if that is the case, then in any event
5 it makes this whole application_for this judge today in this court a very expensive process. Because if we have to postpone this case two months down, in the future, to get proper documentation then this court will not be able to sit as a court in any event, because as is well-known in
10 the military community, in all probability end of November
at the latest December, I'm going out of the defence..-force.
- "
And I would not be inclined to take a part-heard matter, so where this is still pre-pleading stage, once a plea has commenced I will be forced to come back as a part-heard
15 matter in this case, and so in all probability, if this case is postponed for two months, it would not be feasible to put this case in front of me, in any event..
This court therefore has to
deal recusa_ ,
objectively with the application today about 01_
20 this judge on the facts in front of this court as it stands today, not what is projected into the future. The objective criterion was there reasonable grounds for the judge to refuse, or to recuse himself, taking the allegations into consideration?
25 Now, starting with the defence case, it
is clear that I would have needed and required a basis why the defence elected to call the witness, or his client as a witness, first and foremost without laving a proper basis in law. That, nonetheless put a further predicament there,
30 because the court has a duty to objectively enquire into the reasonablenessi.which is the objective criterion,• and.
.. .
the court could not do that to a great extent because it pertains to.client, privileged information, between client and attorney.
35 Nonetheless there was apparently a
redress of wrongs, which the court did not get hold of or
came under the attention of the court, and there was the letter under the hand of Colonel Simelane dated 20 August, which I have dealt with in a certain fashion; or to a certain degree. The fact of the matter is it might be that
5 there is an honest impression in Colonel Simelane that there might be biasness, or as referred to in the letter that there might be knowledge about the case. However, the criterion ..is not what is honestly. believed but what is objectively reflected to make that conclusion, that there
10 is biasness and the fact of the matter that there is knowledge about the state's case.
In this regard Colonel Phiri came forward and said, "Well, due to the one line, the tone of the voice,'content of the line and the fact that the court was
15 flushed and blushing, that made it reasonable for him to jump to that conclusion that there was biasness and there was knowledge about the state's case."- Now that is a very far-fetched explanation! But then his counsel, Colonel Simelane even went further and said there was blood from
20 the face of the judge, -which is similar to a Stephen King horror movie it seems, but that's besides the point, the fact of the matter is we're still looking at objective criterions, not what is honestly believed.
Now, if I have to look at case law, the
25 proper approach to an application for judicial recusal was considered in two recent judgements of the Constitutional Court, starting with the President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999(4) SALR 147 (cc) , the. Sarvu case, referred to now on as the Sarvu case
30 and the South African Commercial Catering and Allied Union Workers and Others v IrVivin and Johnson Company, Chief Division Fish Processing .2.0.0,3 .S.ALR 705 also Constitutional Court case, the SACC,4TVU case . It was also considered in S v Roberts 1997 (2) SALR 243 (SCA) , and in the unreported decision of S v Sager , S v N Smit delivered on
2062-0/13Mri(v0
came under the attention of the court, and there was the letter under the hand of Colonel Simelane dated 20 August, which I have dealt with in a certain fashion; or to a certain degree. The fact of the matter is it might be that
5 there is an honest impression in Colonel Simelane that there might be biasness, or as referred to in the letter that there might be knowledge about the case. However, the criterion is not what is honestly believed but what .is objectively reflected to make that conclusion, that there
10 is biasness and the fact of the matter that there is knowledge about the state' s case.
In this regard Colonel Phiri came forward and said, "Well, due to the one line, the
tonef the
voice, content of the line and the fact that the court was
15 flushed and blushing, that made it reasonable for him to
jump to that conclusion that there was biasness and there
was knowledge about the state' s case ." • Now that is a very
far-fetched explanation! But then his counsel, Colonel
Simelane even went further and said there was blood from
20 the face of the judge, - which is similar to a Stephen King horror movie it seems, but that' s besides the point, the fact of the matter is we' re still -looking at objective criterions, not what is honestly believed.
Now, if I- have to look at case law,
25
proper approach to an application for judicial recusal was considered in two recent judgements of the Constitutional Court, starting with the President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SALR 147 (cc) , . the. Sarvu case, referred to • now on as the Sarvzr case
30 and the South African Commercial Catering and Allied Union Workers and
Others v IrVivin and Johnson Company Chief Division Fish Processing 2 0,03.,
705 also Constitutional Court case, the SACCAWU case. It
was also considered in S v Roberts 1997 (2) SALR 243 (SCA) , and
in the unreported decision of S v Sager, S Smit delivered on
12 March 2001 and the case number 185/1999, in the Appeal Court.
In the Sarvu case it was decided, in paragraph 30, that:
5 "An application for the recusal of the
judicial officer raised a constitutional matter within the meaning of section 167 of the Constitution.the
Since
Constitutional court is the highest court
10 in constitutional matters, its approach
in this regard is decisive."
It stated in paragraph 48 of that judgement:
"The question is whether a reasonable
objective and informed person would, on the correct facts, (reasonable once again), determine that the judge has, or will not bring an impartial mind to bear on the adjudication of the case. That is a mind open to persuasion by the evidence and the submission of counsel. The reasonableness of mind must be assessed in the light of the oath of office taken by the judge to administer justice without fear or favour, and the abilitY to carry out that oath by reason of their training. and experience.
It must be assumed that they can disabuse their minds of any irrelevant personable beliefs of ... (unclear), • positions. They must take into account the fact that
they haVe a duty to sit in any case in which they are not obliged to recuse themselves. * At the same time it must never be forgotten that the impartial
judge is a fundamental prerequisite for a
fair trial and the judicial officer
2062-03/Phiri(vt) ...... . . .
should not hesitate to recuse himself, or
herself if there are reasonable grounds." Now, this reasonable ground went even further to have certain tests in both cases, and I can deal with the tests,
5 which were elaborated on. The first test'is whether the reasonable objective and informed person would, on the correct facts, reasonably apprehend that the judge would not be impartial.
Coming to this dealing with this, what is
10 termed, for lack of other words, by the defence as an order that was made, as in his letter, this order, after numerous postponements, which were put on record by the prosecutor, was embodied in the one sentence, "When the matter comes up on 10 • September 2002 this court will proceed with your
15 trial, with or without your defence counsel." And that apparently brought out such an amount of shock that there was jumped to a conclusion that the judge is biased, number 1. And (2) has knowledge about the state's case. Now, that jumping to logical conclusion still needs to be
20 adequately explained to me because the court cannot accept the versions, which were subjectively put into this court. Objectively there is no reasonable ground for chat.
However, as stated the second test is an objective .one. The requirement is .described in Sarvu and
25 SACCAWU cases, one of double reasonableness.
Not only must the person apprehending the bias be a reasonable person in the person of the applicant for recusal, but the ..applicant must also be reasonable,
30 Moreover, apprehension that the judge
assessor. may 'biased is not enough'.
What.. is required is the apprehension
.. on reasonable grounds that the
judge assessor will not be impartial."
35 There's a difference in meaning in that. Thirdly,
"There is a built-in presumption that
presiding judges are bound by a solemn oath of office to administer justice without fear or favour. They will be impartial in adjudicating disputes. As a.
5 consequence, the applicant for recusal bears the onus to rebut the weighty presumption of judicial impartiality."
As was pointed out by Cameron, acting judge in the SACCAWU
case, paragraph 15:
10 "The purpose of formulating the test, one
of double reasonableness, is to emphasis the weight of the burden resting on the applicant for recusal."
Fourthly: "What is required of a judge assessor is
15 the judicial_ impartiality and not
complete neutrality. It's acceptable that judges or assessors are human and that they bring their life experiences to the bench. They are not expected to
20 divorce themselves from these experiences
and become judicial stereotypes. What judge assessors are required to be is impartial and that is to approach a manner with an open mind to persuasion
25
(End of tape 3)
(Transcription commences on tape 4)
(Nothing on tape 4)
(Transcription commences on tape S).
30 ... by the evidence and the 'submissions
of counsel."
There was no allegation or prbbf to this court that• the court had any knowledge more than the DD1 and the charge sheet, and in any event, the court did not
35 even have the charge sheet. There was no factual proof.
There was numerous case law about delays and the previous
postponement date. The court referred to S v Molenick
1997(12) BCLR 1779, an Orange Free State decision, section 342(a) of the Criminal Procedure Act, Act 51/1977 and the criterions therein.
5 The fact that that section was introduced
as a result of the recommendation of the South African Law Commission project 73 dated August 1995 and dealt with in S 1, Verawas, Svcle... (unclear) ... C 1995(2) SALR 125, Constitutional Court and in other case like R v Zackie 1945 AD as the
10 reference, and R v Zhono 1957(4) SALR can be dealt on. The court does not feel that it's necessary at this point in time to elaborate further on that.
The fact of the matter is we're sitting with one sentence. This one sentence was misconstrued and
15 even on the defence submission made in a defence mind an order by court instead of a warning. Now, if a warning by court is made an order of court in the defence's mind the question still begs to understand why did the defence not come back on 10 September and state to this court, "An
20 order was made to proceed today. We cannot do so, we would like to revisit this order and apply for a variation once again to postpone" because any order can be varied, number 1, given new facts besides that the court did not make it an order but a warning. If it has to be an order then
25 everything the court says, has to be an order. This cannot be.
A postponement on a section 29 is a pure
matter of postponement, for example, if a preliminary
investigation is ordered in the sense-that •ColOnel.Sithelane
30 understands it, then it has to be done irrelevant whether
that person can do it, or not. .Normally. a Jpreliminary
investigation for example is part of the postponement and
if there are reasons why that preliminary investigation is
not completed on the return date then the court will listen
35 to those reasons, even if the court had ordered a
postponement date and that the preliminary investigation
2062-03Thiri(vt)
77 should be done. So, one might be confused by what is an order and whether an order is not variable, the court sees it that the warning was given.
Coming back to case 108/2000, it was
5 interesting to state that a similar type of warning was given to the client of Colonel Simelane stating: "She was even warned that she will be asked to continue the matter in the absence of her counsel." For what it's worth, addressing a letter, even for the information of the
10 Minister, addressing a letter, which is blatantly incorrect in law asking for an administrative recusal, which is not possible where there's case law stating exactly what the position is, and the court has extensively dealt with this, there is a reason for concern. Further, that the
15 perception that was created in his client's mind might have been honest and might have been material, but it was not based on reasonable grounds.
The fact that aspects were added, like
flushing of the judge's cheeks and soon, that
20 interesting except that I was not unfortunately able to see myself, and I have to reconstruct now, which is a totally inadequate position to be in, the middle of winter, the heaters going on. There might have been different reasons for feeling perky that day.
25 The fact of the matter is it is clear
that this sentence alone is not any objective basis for a finding of biasness, number 1, on the judge's side and/or alternatively even the more science fiction finding of having privy to the prosecution's. case.
30 This is the unanimous decision by the
court and the two assessors,.and.to quote case 108/2000, we
.....
accordingly refuse the application for the recusal of the
judge. May we deal with the .next .application?
DEFENCE: As the court pleases.
35 PROSECUTOR: If it pleaSes the court
79
Now, can you put any legal argument that he has a right to elect assessors, first and foremost, before we adjourn because then I would like all that relevant information to be given to me so that I can look at it myself and then
5 obviously ask the prosecutor to prepare a proper argument about the legal content thereof, to hear the prosecutor's view as well before I can make any decision in that regard. Because if I understand you correct, it's simply that your argument is that your client has a right to elect
10 assessors.
DEFENCE: Indeed.
JUDGE: According to what rule or Act, or
DEFENCE: (No reply).
JUDGE: Please help me.
15 DEFENCE: No, the application, Judge, is based on
conduct.
JUDGE: Conduct? I'm riot sure what .you're
referring to now.
DEFENCE: It's based on precedent.
20 JUDGE: On precedent?
DEFENCE: Yes.
JUDGE: Yes? Please help me.
DEFENCE: What Colonel Phiri is going to say is
that application is going to be heard on his objections on
25 Assessors. The first leg of that application would be it's the precedent of a nomination, selection made by an accused person for assessors.
JUDGE: DEFENCE:
30 Sibande.
JUDGE: DEFENCE: JUDGE:
Yes? What case was that?
I think he has in mind the case of General
General Sibande?
General Sibande ... (unclear) ...
Ja? I believe, if I'm not mistaken. that
there was an attempt to state on record by that, because I 35 was a judge in that case, if I'm not mistaken, as well, an
attempt from a counsel, different attorney than yourself,
80
was to the effect that there was an attempt to say that you yourself as defence should be one of the assessors, and the court did not sustain that application. So -there was merely an attempt, which the court didin
not uphold
5 finding, so I'm still waiting for the precedent, except that there was an inadequate attempt made for a precedent. DEFENCE: Judge, we don't have that transcription.
It has been asked for that case but the point there is that it is not because the request would not have been made, the
10 question was the second assessor there he had requested, was not of the particular rank that was reauired. It was not the choice made, that the choice could not have been made of the assessors was that the question was that one of the assessors we have chosen would not qualify for certain
15 reasons.
Now, what Colonel Phiri wants to sav is therefore that he had nominated assessors who both oilalify, and therefore that it is distinguishable from the Sibmvie case where in fact the second assessor was refused, not
20 that because he was made by the accused in that case, but simply because the view was taken that that assessor did not qualify for reason of rank. And to that extent he would therefore want to place this on record that this request was made and his request has not been met.
25 JUDGE: Yes, okay, I still fail to see that as a
precedent, but as long as I can understand your legal application. Yes?
DEFENCE: Yes, that is the it's really to be
questionable if of conduct discriminating one member 30 against the other. Then the second leg of that argument,
of that application ............
... ....
JUDGE: But, sorry, what is the essence of your
'before we step off the point; -Colonel " Sim-lane; we don't want to get subjective interpretation once again. I
35 would like a reasonable explanation, objectively, that
81 can understand. What is your point? Do you put it to this court that your client has the right to nominate assessors? DEFENCE: I think what he wants to say,- Judge, as I've indicated that he wants to rely on that precedent
5 where ...
JUDGE: A precedent that hasn't been formalised
in court?
DEFENCE: It's a matter that he handed in court,
there's a record that ... (unclear) ... of that case. It's
10 .
JUDGE: It was dealt with on an ad liminae point and
it was dealt with and not sustained, so ... but besides that, so you want to tell me there's a precedent on an ad liminae point that was not sustained?
15 DEFENCE: It's what I've indicated, Judge, that my
nominations ... choc.= therenotsustained beca u:: the instructions are that that matter of regarding the
choice could not have been made. It was not sustained
because the choice was a choice of an unqualified candidate
20 for certain reasons. And he wants to say that in
this particular case of his he did indeed choose two ... JUDGE: A qualified one?
DEFENCE: two qualified candidates, which,
according to him, would therefore would have been
25 accepted.
JUDGE: Don.-.. therefore I'm asking you, you're
putting in front of this court the end result is that your
client, according to you, has the right to choose
assessors? Contrary to what the MDSMA-states that it's an
30 election process that the judge has to do on
certain
criteria, based on the criteria obviously in 20(9) as well?
. • .... ...
DEFENCE: (No reply).
JUDGE: Have you read 20(9)?
DEFENCE: I've read those proyisions of that, ja.
35 JUDGE: Did you read the . words, "A presiding
judge may on application by the defence order" and then
...
.. ........ . . . H- .
82
there are certain criteria, but if you read the whole section 20 can you see anything that states that the judge has to appoint somebody, according to the election from the accused? I would like to see that, please.
5 DEFENCE: No, the statute is silent. It says
there, "The judge would then appoint", and he wants to say that people so appointed would have been those people he had nominated.
JUDGE: No. • it also states precisely that, if
10 you read 21 and 22, it states that there are certain
criteria according to which this nomination Must be made. DEFENCE: Yes, Judge, he wants
say those criteria, which are listed, there were met. JUDGE: Yes, but now he wants to also make the
15 election for the judge, on behalf of the judge by indicating two persons that would be, according to him, the right persons.
DEFENCE: Yes, I think that maybe the court would
then give him an opportunity to put that, because if the 20 court is going to refuse his application then it ...
JUDGE: Sorry.
Why should I give him an opportunity to explain the law forme, which is objective?
Why should I let a person who is not qualified in explain his subjective interpretation of . the law law?
25 Therefore I've got a counsel, a very qualified counsel to explain to me the law and try to convince me about his argument.
DEFENCE: Ja, what I see is that we don't go on
because.if you hang the applicant on the point and then. you 30 make a decision then we know that we have on • record his application. We have On record your decision and then we
can go forward. Because if it's going to be an argument.
between 'you 'and .1. then. ...
JUDGE: No, *I'm telling you that if you can't
35 convince me on the law with case law or interpretation of section 20, I can tell you without any doubt in mind that
an application based what the effect would be that your client has the right to choose assessors, and that he's not happy with the two present assessors without- giving a reason, besides that he has chosen other assessors, will
5 not be in line with the understanding of section 20. And therefore I would like you to make out a legal argument, not what your client subjectively feels about an election process.
DEFENCE: No, it's not a question of subjectivity.
10 We .. it's not a question of subjectivity.
JUDGE: Then you make out a legal objective
argument, and I'll hear it at the next stage. Okay. What
is the other criteria you want to put before the court
because that was regarding to the two assessors, because we
15 haven't dealt with the one assessor, which I still don't know which assessor you're going to indicate. You might have to place that on record as well that if the court sustains that we have an alternative assessor available for that date, and not have two alternative assessors
20 available.
DEFENCE: No, the second leg of that argument,
Judge, would have been that obviously if one of the
assessors, if we can only have a maximum of two assessors,
if one of the assessors is one according to his choice,
25 then the other one who is sitting with you today is not the one he has chosen. Now, he .
JUDGE: Sir, please indicate on record, which one
is it now so that we know which assessor to be at least available, or should we just put one assessor available and 30 then hear your argument on that day?
DEFENCE: No, it's not difficult teally, judge
.. . .
.....
putting that on record. The assessor againSt whom an
objection would be made is Colonel Tshabalala.
JUDGE: Okay. And you'll give me objective
35 criteria for that on the date when we get to that point, and obviously myself and the full colonel then will have to
1062-0/Thiri(a).
84
sit in private, and we'll excuse Colonel Tshabalala at that stage.
DEFENCE: Yes.
JUDGE: But at least we know where we're going
5 now. Okay. But the first one, I'm still
DEFENCE: Still in the dark there?
JUDGE: ... still in the dark there, ja.
DEFENCE: You shouldn't be in the dark, Judge,
because that statute says the ...
10 JUDGE: What is your objection? Formulate it in
20 words. Let me see if I can understand you.
DEFENCE: The objection is that he will be treated
differently, section 9 of the constitution, he will be treated differently.
15 JUDGE: Why?
DEFENCE.: He'll be treated differently because, as
he understands it, the appointments, which the judge makes
when the statute says. "A judge shall appoint", his
understanding, and the precedent, which he has cited, is
20 that when she so appoints ...
JUDGE: Let's get legal terms correct. It's not
a precedent. I've told you that. It's a concern, it's an interest, make it out what you will, a precedent is a court case that has been finalised in your favour.
25 DEFENCE: He ... then we've got different ... I'm
not citing a decided case. We're saying it's a precedent
in that ...
JUDGE: Yes?
DEFENCE:. in that a member. made,
choice,
30 Judge. JUDGE: Of two assessors?
DEFENCE: Of two assessors.
JUDGE: Okay. Now tell me exactly the legal
argument for why I should allow an accused to make a choice 35 of two assessors. It's simple. Nothing complicated. Tell
me the law. Show me in the statute.
. ...
DEFENCE: The same statute, which said . section
20 where it says, "Shall appoint".
JUDGE: Mm.
DEFENCE: His case, the case of the accused is that
5 "the people so appointed" are the people so nominated, unless the person has not nominated then the judge would look around, but the part of the argument is that a member
JUDGE: Where do you see that in the law? Direct
10 me to a specific sentence.
DEFENCE: That says the judge shall appoint.
JUDGE: 21 maybe?
DEFENCE: No, it should be ...
JUDGE: Well, 20(1) deals with the appointment,
15 so maybe you can start there.
DEFENCE: Ja, there is the sub-section. Sub
section (1) that, "When military assessors have to be appointed in terms of this Act, the Director, Military Judges or an officer referred to in section 13(2) (a)
20 appointed by him or her for that purpose, shall appoint." Now, this "shall appoint" is understood ... what the accused is saying is that when he saw "appoints" in the event of a nomination, 1-1,=, appoints such a nomination. Where such a nomination has not been made, then that
25 appointment is an appointment that comes solely from the Director, Military Judges.
Now he says when General Sibande had appointed his second choice was not met, not because he did not ... he could not have been appointed, he was not a
30 choice properly made, but it was a choice of a party that could not be appOinted.for.Certain reasons. Now, what he wants to say, he (unclear) ... appoin in his case should have applied to the people he had nominated, that the court ... that the director should then have was bound
35 to appoint them.
JUDGE: Bound to appoint them according to what?
87
JUDGE: Ja. It doesn't add the little proviso that
"according to the choice of the accused".
DEFENCE: It doesn't say according to any-choice.
JUDGE:
Thank you. You're overruled on that, on
5 law. I'm not even going to deal with things that are so
blatantly incorrect in law.
DEFENCE: Is this on record, because I wanted you
JUDGE: This is on record.
10 DEFENCE: All what we ...
JUDGE: We are the whole time on record.
DEFENCE: All we want, because we're going to take
this on review, we want the court's decision.
JUDGE: That's the decision.
15 DEFENCE: Yes, because we are coming -.10 review.
JUDGE: You have it.
DEFENCE: Okay, fine. If that is the decision then
fair enough.
JUDGE: Okay. And then we can hear . at the
20 next meeting we can hear your application fcr the recusal of Lieutenant Colonel Tshabalala.
DEFENCE: Mm.
JUDGE: Okay. At least we haVe progressed some
time today. Do you have a date in mind ... have you do
25 you need a short adjournment to liaise with your colleague on the other side, as far as a date is concerned?
DEFENCE: Okay. I don't know whether we should take
an adjournment? Can we discuss it here?
JUDGE: _Preferably,. because maybe we have to
30 obviously consider that those dates have to be applicable and suitable, nb 'only 'to you and your client, but.alSOtO
the prosecution and also to the asessors and the court itself, please:- So I'm going to switch off until you're ready to put this on record once again then we can proceed.
35 Okay?
2062.70/11410.1)
PROSECUTOR: Judge, both ... (unclear) let's first
just discuss the date ...
JUDGE: Sorry. You're not ready for the date
already?
5 PROSECUTOR: . before we go on. I have certain
confirmation with the court.
JUDGE: Okay. Obviously I will have to liaise
with my assessors as well, so I'm going to switch off until you've got a proper date, and make sure that it suits all 10 the parties, the client as well. Thank you.
(Recording machine was switched off)
JUDGE: There was a date proposed as 28 November
for this case to be further dealt withthe
regarding
applications, pre-trial applications.be
Now, it might
15 that by that date, the state is in a position to, prior to that date, give all the necessary requested documents to the defence, and only one application might be on the court roll for that day. However, the court is going on the presumption that the 28th is scheduled for two applications
20 to be made by the defence, and depending on the outcome of t hose applications, obviously even the trial that has to commence depending on what the documentation availability was or not.
Now, it suits both assessors as well, and
25 the court will ask all parties to be Present on 28 November. It might be feasible, Madam Prosecutor, and I don't want pre-empt this case that we arrange for another judge in this matter, solely on the basis that I'm either out of the defence force at the .end of. November or at the .
30 latest at the end of December. So it would be hard to
imactine.that.this trial would be completed on one*day and
for practical purposes that another senior military judge
should be appointed to take over the case regarding the two
remaining applications. This case is then postponed to 28
35 November 2002. Colonel, is there any problem from your
89
side not to be present on that day, according to your diary or anything that you know of?
ACCUSED: Judge, this case is a priority.
I will
set aside any exigencies that might have been.
I will
5 definitely be available, God willing, Judge. JUDGE: Okay. It seems to be, in all probability
that I won't be the judge. It might have been an
interesting case. For what it's worth I don't know what
the charges are exactly, but another judge, in all 10 probability, will sustain the further applications. You
understand that?
ACCUSED: Yes, Judge.
JUDGE: And I wish you well in this case. I'm
not going to be further partaking in all probability in
15 this case, so be back in court on 28 November and then we can hear further argument by Colonel Simelane. Thank you. PROSECUTOR: As it pleases the court.
(Case is postponed until 28 November 2002)
(End of tape 5)
20 (Transcription commences on tape E)
(Court re-opens)
JUDGE: This is tape 6 in the case df 980076932E
Lieutenant Colonel G M Phiri, Defence Intelligence. This
court resumes on 28 November 2002 at 10:30 in Thaba-Tshwane. 25 City Hall, Court "A".
In front of me I have an amended, or a new notice of enrolment appointing that is 70688882BV
Colonel Pieter ... (unclear) ... Venter, S A Army as the
senior military judge. in . this case.. The accused is present 30 in court. The reason why I am sitting here as the
presiding officer today is'because of'the fact that Colonel
Luus is leaving the service' at the end of Dece7ber. He has
been boarded and is going on.pension.on.medical grounds.
Colonel Phiri, for the records state your
35 force number, rank, full names and surname please.
DEFENCE: Force Number is 980076932E, Lieutenant
Colonel Goodman Manyanya Phiri. That's it, Judge.
JUDGE: Thank you. I have already, at .the outset
introduced myself and the assessors of this curt. We now 5 proceed to the procedure in terms of Rules 35 and 36, objections and the recusal.
You are informed that you may object to being tried by the presiding judge, that is myself and/or the assessors on the grounds that either one of them is
10 related to yourself or a complainant by affinity or consanguinity, that is kinship in the first or second degree. (b) That anyone of us has such knowledge concerning the facts of the case that our decision is likely to be prejudiced thereby. (c) That anyone bears
15 towards you such an animosity as is likely to prejudice his or her decision. (d) Has a personal interest in the proceedings.
And you can object to an assessor on the -ground that he has a personal interest in the proceedings.
?() (b) There are reasonable grounds for believing that there is (1) likely to be a conflict of interest as a result of the assessor's participation in the proceedings, or (2) a likelihood of bias on the part of the assessor. Would wnvi like to speak for the accused,- Colonel Simelane, any
25 objections in this regard?
DEFENCE: Any object...
JUDGE: Objections towards regard to
myself or any of the assessors?
DEFENCE: Judge, my .instructions are that the
30 accused has an objection regarding one of the assessors. The assessor on the judqr-s left.
JUDGE: Right. Okay. How do you intend to
proceed with your objection? Are you going to make
statement first, or ... please, if you like.
35 DEFENCE: Judge, before addressing the...
2062-01:1-66(,1)
JUDGE: Just state what the basis for the
objection is.
DEFENCE: Yes. I would like the accused to give
evidence as to the basis of his objection to the ...
5 JUDGE: You would prefer that to be done first?
DEFENCE: I would prefer that to be done first then
I can address the court on ...
JUDGE: Okay. Thank you. Right, Lieutenant
Colonel Phiri, your defence counsel has indicated to me 10 that you are giving evidence under oath.
APPLICATION REGARDING RECUSAL OF ASSESSOR
WITNESS NUMBER 1.: 98007693PE : LIEUTENANT COLONEL GOODMANMANYANYA PHIRI (Hereinafter referred to as "ACCUSED") GIVES 15 EVIDENCE UNDER OATH
JUDGE: Major Boshoff,a y
you wanted to
something?
PROSECUTOR: Judge, the prosecution would just like to
raise the concerns in terms of Rule 36(3) where it is
20 determined that, "if any objection has been made against a said assessor the assessor will withdraw wile the objection is heard."
JUDGE: Thank you for reminding me of that.
Major (Colonel), you'll have to withdraw and go out,
25 please. Thank you. The witness has been sworn in. The Assessor against whom the application has been made, that is Lieutenant Colonel Tshabalala has left the courtroom. Please carry on, Counsel for the Defence. You can lead your witness.
30 DEFENCE: Yes. As the court pleases.
EXAMINATION'IN CHIEF:
DEFENCE: Colonel Phiri, will you kindly tell this
court,• in your own words, the grounds upon which you object to Colonel Tshabalala sitting as a member of this court, 35 the military assessor.
2062-03(Phiri(i(t) .
92 ACCUSED: As it pleases the court. The grounds on which I would rather have Tshabalala not as part assessors are as follows. He, long before the finalisation of the issue of assessors between myself and the prosecution
5 counsel who was to phone me later on, Tshabalala had already informed me that he was going to be an assessor in my case much to my surprise and discomfort, as I've just said the matter had not yet been finalised between me and the court who the assessors were. The second reason which
10 ... or ground which compounds the first is based on my --
for lack of a better word,the
ascertain that my ...
charges I'm facing today are a reprisal borne of former force allegiances.
JUDGE: Sorry, I didn't hear.
15 ACCUSED:I'm just They are like a reprisal
looking for another word for "reprisal" here, based on former force allegiances. If the Judge wants me to go into detail?
JUDGE: Oh, based on former force allegiances?
20 ACCUSED: Yes.
JUDGE: Okay.
ACCUSED:
And I feel that Colonel Tshabalala as somebody who, to my knowledge, is not from the same former force as myself it' will have a bias. I don't know if the
25 judge would like me to go into detail. I'm prepared, but I think that should be sufficient that it was a reprisal, the charges are a reprisal because I was speaking out against corruption involving certain persons or officers of the former force or two, and.I was, immediately after.writing a
30 grievance, I was charged. So I do not see. Tshabalala
therefore having first forektOWledge "that*he—Will be an
assessor in my case, even before I know the identity of assessors.
And secondly coming from one of the
35 persons who were troublemakers, who caused my speaking out against for me to be charged that he can be a ... (unclear)
Subsequently, after his first appearance, previous appearance here when I first raised to my defence counsel, that will be the third ground, Judge, my fears
about
Tshabalala were confirmed.
First Tshabalala went about
5 defence intelligence building gossiping about issues of the court. He said, "Colonel Phiri doesas
not want me
Tshabalala to be an assessor because Colonel Phiri's worried because I'm from this former force and Phiri is from that former force", which was to me, Judge, very
10 insulting to hear.
And then he was subsequently also in
front of me to talk about another impending case which
involved a full colonel who had charged a lieutenant
colonel and the two gentlemen who had charged each other
15 with belonged to two former forces, and unfortunately for
Tshabalala the person who was charged came from the same
former force
no way that
former force
20 came from a
And he went as he, and he wants to tell me that there was he as Tshalalala and his comrades from that were going do allow the particular colonel who different former force to char:e the indi.•• on further to say that he was Then therefore
going to make sure, and they have got a system workine in
the SANDF whereby they will put assessors to the favour of
the accused member so that he be found free. And then he
25 went on to tell me that they were in the process of coaching the accused member on how to lay down the charges, and to me ...
JUDGE: Sorry, I didn't hear tha:. Can ',Jou
repeat your last sentence.?
30 ACCUSED: And they were certainly in the process of
coaching, or showing methods'to'the accused, or the person
who was going to be the accused by that particular colonel
from a different former force on how to lay down the
charges. Basically to allow the troublemaker, or the
35 person accused by the full colonel to walk free, and that to me was really an insult to the justice system of the
SANDF ... and I was convinced I will not have Tshabalala as an assessor.
And I want to put, if the Judge will allow me, to put a last point, which I think will be very
5 important also. On a personal basis I have no problem with Tshablala. We are on talking terms, we are very buddy,
buddy, but in terms of principle I think we've got two different (unclear) ... outlooks and it is an
(unclear) ... that an assessor should be a person who sees
is why I went into detail, looking for person
10 the world more or less the same way as the accused, That
understands my background, and identified certain (unclear) ... but I think we'll go to that maybe later That would rest my case on Colonel Tshabalala, Judge.
15 Thank you.
JUDGE: Is there anything else you wanted your
witness to say?
DEFENCE: Yes, Judge. I want him to clarify the
question that Tshabalala, even before it was formalised in
20 terms of formally being advised who the military judges were going to be in this case, that he told you beforehand that he was already a military assessor in your case, you felt that he had a personal interest in your case, and that he was going to be biased?
25 ACCUSED: I said that, as I said earlier on in mY
statement that he was an instrument, and I still feel he is an instrument of certain forces who want to see me found guilty because that is why I was charged, and so that I can shut my mouth basically, and he's here to ensure that..
30 DEFENCE: That is the evidence, Judge; As the
court-pleases.
JUDGE: Cross-examination by prosecution counsel?
PROSECUTOR: Judge, no cross-questions. Thank you.•
JUDGE: No cross-examination? Defence Counsel,
35 are there any further witnesses in support of the application?
DEFENCE: JUDGE: No further witnesses, Judge.
Prosecution Counsel, are you calling any
witnesses in rebuttal?
PROSECUTOR: None. As it pleases the court.
5 JUDGE: Also not calling the particular assessor?
PROSECUTOR: No.
JUDGE: And the court deems it wise not to call
the particular assessor. Okay. And the reason for that
being that the particular assessor has indicated to this
10 court, beforehand, without going into any detail that he would rather withdraw of his_own accord. That is what he told this court in the presence of prosecution and defence counsel, and on that basis we'll deal with the matter. Okay? Although normally it would be his right to be
15 informed of what has been said, but. this court deems it not wise to go deeper into this matter. This curt has enough reason to deem it better that this assessor, Lieutenant Colonel Tshabalala that his request should be granted, that he should be excused from this court.
20 The court has a few remarks to make, most
important being that this court knows of no reason why a particular assessor should be from the same, in this case, as it was mentioned by the accused, the came former military force. In that way one cannot get impartiality in
25 judging the case. And, to the court's mind, assessors should be totally unbiased, with no previous allegiances to anybody. And another factor is that this co=t knows of no rule that says that the assessors in a case should be of the. same. background, and also ethnic group as an accused..
30 The rule says, yes, there should be
knowledge of certain background matters;-and. the' CoU"ft ta•n
think of examples where certain beliefS'Of persons of a
certain ethnic group would come into play; or be a .facstor
to be considered, but normally assessors help the court in
35 deciding on certain technical issues, for instance if a store-man is being charged on a charge of having
deficiencies in stores, it would help the court to
h
assessors who are versed in the procedures that ::: applicable in stores.
But this is then the decision of this 5 court, and you agree with me that the assessor stand down, as he has requested in your presence, Colonel?
DEFENCE: Yes, .. (unclear) ...
JUDGE: Okay. That is then the decision of this
court. This court will proceed at a date to be arranged
10 shortly after this and we'll have a new assessor on mY left-hand who would not necessarily have to be a member of the same former military force as the accused, and does not even, in the court's humble opihion, have to be of the same ethnic group as the accused. That is then the decision of
15 this court.
Right. By mutual agreement, and does
you, Colonel?
... (unclear) .. The date as well? ... (unclear) ..
This case is then remanded until 21
January 2003 in this same court. Lieutenant Colonel Phirif you will be here, and your witnesses as well, and the prosecution will have her witnesses on standby and ready,
25 so that we can proceed on that date. If defence has any further possible objections it would be appreciated if the defence could give this court notice at this stage. Are there any further applications?
DEFENCE: Er .
30 JUDGE: Do you wish to give notice of any further
applications?
DEFENCE: Okay.
JUDGE: Or will you deal with that as the matter
goes on?
35 DEFENCE: Yes. I would like to deal with ...
aw.m.vphirioio
JUDGE: Of course we'll first have to get the
seat to my left-hand ...
DEFENCE: To the ... yes.
JUDGE: side filled ...
5 DEFENCE: Get it filled properly.
JUDGE: so that we can be constituted as a
proper court.
DEFENCE: Indeed, Judge.
JUDGE: Ja. So all this court can, at this
10 stage, really do is do the remand.
DEFENCE: Yes.
JUDGE: Okay.
DEFENCE: As the court pleases
JUDGE: Thank you for helping me there.
15 DEFENCE: .. (unclear) ...
JUDGE: So you heard that, Colonel? We'll be
here on 21 January 2003 ... (unclear)
ACCUSED: ... (unclear) ...
JUDGE: Thank you. You may withdraw.
20 (Case is remanded until 23 January 2003)
(Court re-opens)
COURT CASE OF LIEUTENANT COLONEL GOODMAN MANYIANYA PHTRI COMMENCES ON 23 JANUARY 2003
25 JUDGE: The case of Lieutenant Colonel G M Phiri
resumes on Tuesday 21 January 2003. The case was postponed until today for the authorities to appoint another assessor in the place of Lieutenant Colonel Tshabalala who recused himself from the case. A suitable assessor has not vet
30 been found, or appointed, and the case accordingly is remanded or postponed again for this to happen. The case. is, by mutual consent of prosecution and defence, remanded until Friday-31 January-2003.
On that date the court will deal with any
35 preliminary investi... objections, rather and at this stage
the name of Colonel V Sibeko, a part-time force senior
2062-0/Wri(v0
military judge has been put forward as a possible assessor, and if he is appointed eventually a new notice of enrolment and assessor's certificate will be made out. And at the same time the defence is given notice of the intention to
5 appoint Colonel Sibeko so that they can . . so that they know who the person would be and can make a decision of whether he will be acceptable to their defence.
Colonel, you can stand back. You've heard this case ::g7-1 ja, first of all please sign this pre-trial procedure
10 certificate.
(Case is remanded until 31 January 2003)
(Court re-opens)
- JUDGE: The case of Lieutenant Colonel G M Phiri
resumes on 31 January 2003 at ± 09:35. Att • his stage we
15 are still busy with preliminary objections and possible
recusals of anybody. I read again as from paragraph 12 of
the record of proceedings, the presiding judge informs the
accused that he may object to be tried by the presiding
judge and/or the assessors on the grounds that he or they
20 are (a) related to the accused or the complainant by
affinity or consanguinity as kinship in the first or second
degree, (b) has or have such knowledge concerning The facts
of the case that his, or their decision is or are likely tO
be prejudiced thereby, (c) Bears, or bear the accused such 25 animosity as is likely to prejudice his or their decision, (d) has a personal interest in the proceedings.
And the accused can object to an assessor
on the ground that (a) he or she has a personal interest in
the proceedings,. (b). ,there are .reasonable grounds for
30 believing that there is (1) likely to be a conflict of
interest as a result of the assessor's participatiOn'in the
.........
proceedings, (2) a likelihood of bias on the part of any
assessor." What does the defence intend to do?
DEFENCE: Judge, the defence does not intend
35 has no intention to object on any ..
JUDGE: To the judge or any assessor?
2062-0/Phiri.(vI).
DEFENCE: ... to the judge or any assessor.
JUDGE: Thank you, Sir. Just to confirm, Colonel
Mabusela haveNot
you previously been sworn in or .not?
yet? But just to make sure that we have it doubly sure, 5 we'll swear you in again. Okay? Today.
(Assessors are sworn in)
JUDGE: For the record, and this has also been
recorded at paragraph 14 of the record of proceedings, both
assessors have been sworn in. Defence Counsel, did you
10 have enough time to prepare, and did you receive the documents you need in time?
DEFENCE: No, Judge, we still have outstanding
matters. The court is aware.
JUDGE: What kind of documents, Sir?
15 DEFENCE: The documents which Colonel Phiri
requires for his trial.
JUDGE: Who did you request the documents from,
and which documents are those? Sorry, can you just turn
the microphone towards your mouth there, please?
20 DEFENCE:of
Yes, Judge, we've made a list
documents. To assist the court, a formal request on the advice of this court to defence counsel and to Colonel Phiri was initially that these documents, which were considered as documents required for the trial ...
25 JUDGE: Do you need those documents to be able to
DEFENCE: To prepare for this ...
JUDGE: . prepare and cross-examine, etcetera?
DEFENCE: .. for his case. Yes, and to prepare
30 for his case and be able to cross-examine him,the
and do
necessary.
JUDGE: Right. Apparently we and we can ask
the prosecutor here, do you have any witnesses lined 1.-IP today, Prosecutor?
35 PROSECUTOR: None. As it pleases the court, Judge.
JUDGE: Is there any problem by defence that we
commence with reading the charge sheet today?
DEFENCE: Ja, we ...
JUDGE: And asking the accused to plea?
5 DEFENCE: Ja, the ... it will be difficult for the
accused to plead when he will not be having those documents because it will impact on the plea and his case.
JUDGE: Right.
DEFENCE: The essence of the case.
10 JUDGE: Can I ask you whether, and I would like
the prosecutor to answer me there, was there a preliminary investigation in this case?
PROSECUTOR: Colonel, there was a preliminary
investigation and all the witnesses testifying with regards
15 to the charge in front of the court, or in front of the accused, and the charges to set down by the accused has. been included in the preliminary investigation; end therefore handed over.
JUDGE: Okay. So there was a preliminary
20 investigation?
PROSECUTOR: That's correct.
JUDGE: Was the defence given a copy of this
preliminary investigation?
PROSECUTOR: That's correct. Ja.
25 JUDGE: At what stage?
PROSECUTOR: Colonel, it's so far back now. It was in
the ... preliminary investigation was completed in March 2001 and I believe April/May it was handed over to the defence counsel.
30 JUDGE: You're talking about 2001?
PROSECUTOR: 2001: That's 'correct, Colonel.
JUDGE: -Defence Counsel?
DEFENCE: -Yes, er
JUDGE: Is that so?
35 DEFENCE: I'm not aware of that. I may not have
been involved in the .. maybe at the time. I don't know.
101 JUDGE: Right. Can I ask you this, since I have taken over as the judge in this case
DEFENCE: Yes, Judge.
JUDGE:you
have had the preliminary
5 investigation?
DEFENCE: No.
JUDGE: When did you receive that?
DEFENCE: (No reply).
JUDGE: The copy of the PI.
10 DEFENCE: (No reply).
JUDGE: Do you have it here today?
DEFENCE: No.
JUDGE:You Are we talking about the same thing?
know what a PT is, a preliminary investigation?
15 DEFENCE: Yes, a record of ...
JUDGE: Yes, an investigation that was
done. Evidence that was taken down etcetera. Do you have that? DEFENCE: No, I have statements of certain witnesses, which are intended to be used.
20 JUDGE: Okay.
DEFENCE: Yes.
JUDGE: But is there anything stooping us -7rom
proceeding to the reading of the charge sheet and plea today?
25 DEFENCE: I'm not sure whether that's a tactical
issue, but the fact of the matter is we have pending applications before this court, preliminary applications. JUDGE: Okay. What are they?
DEFENCE: And they are on record, Judge The one
30
JUDGE: Were they lodged before I took over as
......
senior judge in this case?
DEFENCE:
court took over. 35 JUDGE:
DEFENCE:
206:2-03PPIC160:0 .....
Yes. They were lodged before the present
Are they still relevant for this case? Ye...
JUDGE: Seeing that we have reached the stage
where the bench is to the satisfaction of ...
DEFENCE: Yes, Judge.
JUDGE: ... the accused?
5 DEFENCE: They are relevant, not to the same
extent. One objection is on a question of principle and which Colonel Phiri feels he has to put on record relating to the assessors and the selection thereof. (2) ...
JUDGE: Okay, but is that an issue that should
10 affect this trial? Isn't that a matter, on the matter or principle you are unhappy about the way certain things might have gone, that you take it up with the authorities in the legal section?
DEFENCE: We ... no, the important thing in that
15 regard is to have it on record because it impacts on the ultimate trial how things went to on.
JUDGE: Do you think that your client will not
get a fair trial from the three of us sitting here? DEFENCE: Not me ...
20 JUDGE: As it is?
DEFENCE: Not me. I have instructions, Judge.
It's nothing to do with my feelings. How or what I think
about the court. My instructions are that (1) Colonel
Phiri puts his case on the question of assessors and he
25 wants to give evidence in this regard. And ...
JUDGE: Okay, but that has been dealt with.. That
has fallen by the wayside now because of the fact that we
are a bench that you have no problem with at this stage.
DEFENCE:. Ye...
30 JUDGE: And when I say "you" I mean the defence.
DEFENCE:. Colonel Phiri
JUDGE: Yes. Would you like' to consult with your
client?
DEFENCE: Okay, let me consult with him, Judge.
35 JUDGE: Shall we stand down for five minutes, or
what?
103
DEFENCE: No, my instructions are that at this
moment we don't have to stand down, but he persists with his instructions that he wants this matter to be placed on record.
JUDGE: What? What are you placing on record?
DEFENCE: What is to be placed on record, as
understand it, short of giving evidence from the bar, Judge, because he's going to give his evidence himself, but
10 JUDGE: No, the point is I don't really
understand what this is all about, and how at this stage one can have any problems with things that happened in the past, which I, and the members here, don't even know about it. I, and the assessors. The assessors and myself. So
15 how can this affect the legality and the fairness of this trial that has to come?
DEFENCE: It impacts in the sense that, as
understand my instructions, is that he is cuestioning the
process that brought about the existence of these assessors
20 presently before the court. He has no objections against any one of them, but the process that brought about these assessors. It may become clear in his evidence. And the second point on the same issue is it's a previous case of one General Sibande and he wants to illustrate there that also
25 he is treated differently from the practice that was applied then, to the extent that this would be brought to the attention of the court. It would form part of the record and he may revert to it at whatever stage. We don't know when and where this case will-end-
30 JUDGE: Right. Can I say something?
DEFENCE: Thank YOU, Judge.
JUDGE: We already have the situation that there
are no problems from the—defence's--si.'de with the two colleagues sitting next to me, on either side of myself.
35 So what can really be the problem? And especially if one
.. have you seen the assessors' certificate? It was
signed by Colonel Colby, Senior Military Judge. It was, believe, assented to, okayed by Brigadier General Myburgh who's the Director of Military Judges. So these assessors have been appointed in terms of the rules and the Act.
5 There was no irregularity in the appointment of these assessors. I'm satisfied as far as they tell me that they would be suitable and proper assessors to assist myself in this case, to see to it that justice is done in this matter.
10 DEFENCE: Judge, I would think it would be useful
if I allow Colonel Phiri to give -testimony and explain himself and the court can get to know what are the issues really.
JUDGE: Is there any problem with, let's say any
15 personnel at Legsato, Thaba Tshwane, any particular person who, let's say did the initial phoning of people, etcetera? DEFENCE: Ye...
JUDGE: To . apparently the person had .
people had problems in getting a suitable assessor? They 20 have a list, but people are not available, etcetera? DEFENCE:Ja, those issues will be addressed in .
JUDGE: But the point is ...
DEFENCE: Yes.
JUDGE: ... all that falls by the wayside because
25 of the fact that defence has said, "No problems with the assessors.'.'
DEFENCE:
JUDGE: So that is not an issue anymore, Colonel.
DEFENCE: I...
30 JUDGE:and One can't go back to this situation,
the ruling of this. court is the prosecutor w'll read th .......
Colonel Phiri, stand there where you stood
35 JUDGE: Colonel Simelane, if you are not
satisfied with this court's ruling that the charge sheet
2062-01111iii0/0
105 should be read now you can take this decision of this court on appeal to the High Court at the cost of your client, but at this stage as far as this court can see there can be no preliminary objections, and the prosecutor is instructed to
5 read the charge sheet. Your client is instructed to go to his place there, in the dock, and he'll listen to the charge sheet.
(Recording machine was switched off)
JUDGE:at The court resumes its proceedings
10 11:00. During the break the court consulted
in chambers
behind
us with the prosecution and defence counsel, and later on also with the Director, Military Judges to obtain advice as to how this application that the defence wants to lodge, should properly be dealt with. At this stage the
15 court defers its ruling regarding the plea, regarding the obligation for the charge sheet to be read, and the accused to plead.
The court will now afford the defence the
opportunity to lodge the application formally, and if need
20 be that they support this application by calling apparently
the accused, Lieutenant Colonel Phiri to give evidence
under oath. But the court must stress that at this stage
we should confine ourselves to what is strictly relevant to
the case, and what is reasonable and necessary to enable
25 the defence to properly conduct their case so as to, for instance, cross-examine properly in the light of any former statements made by witnesses who will probably be called by prosecution counsel. Defence Counsel, you may now bring your application..
30 DEFENCE: As the court pleases. Judge, we ...
will Call'Upon Colonel Phiri to take the witness stanch and
. .. .. ... .
to give evidence before this court as to the dOcuments he
would like to be furnished with for the purpose of enabling-
him to prepare for the trial and to conduct and that
35 the defence will conduct it accordingly.
JUDGE: Before you do so, you of course realise
that your witness, your client will be subject to cross-examination?
DEFENCE: Indeed.
5 JUDGE: Your client must also be informed, and
this what I'm doing now.
DEFENCE: Yes.
JUDGE: That anything he says or is going to say
in evidence might be used in this trial against him, if 10 what he says is detrimental to what he might say to this court at this stage. You understand that?
DEFENCE: I understand, Judge.
JUDGE: Your client understands that?
DEFENCE: Yes.
15 JUDGE: He nods his head, yes.
DEFENCE: Yes.
JUDGE: So I don't know, do you . can you give
the court an idea how long his evidence would be perhaps? Is it . how long will he need for that, to hear his
20 evidence?
DEFENCE: My instructions are that he'll be about
an hour.
JUDGE: An hour?
DEFENCE: Mm.
25 JUDGE: Ja, that's fair enough.
DEFENCE: Mm.
JUDGE: Does prosecution counsel want to say
anything at this stage?
• PROSECUTOR:. Not ,at this stage, Colonel..
30 JUDGE: Yes. Do you want to call your witness
first, or do you wish to maybe make 'an 'opening statement,
or are you going to address the court after he has given
his evidence?
DEFENCE: Yes. I intend to call him to enumerate
35 the particular documents he wants, and ...
JUDGE: And saying why he wants them?
DEFENCE: Yes, and ...
JUDGE: And how they are relevant
DEFENCE: Relevant to ...
JUDGE: to the conduct of his case?
5 DEFENCE: Of his case. I will, thereafter, when he
has completed his evidence and having been cross-examined, if that happens, and any evidence the prosecution might like to bring, but at the end I will make an address, legal arguments on what the evidence would in fact be given.
10 JUDGE: Counsel, are you also ... apparently when
we spoke at the back ...
DEFENCE: Yes.
JUDGE: ... here, it transpired that the defence
had made an application for those documents tobe_submitted 15 to the defence. Can you, at this stage tell the court what happened?
DEFENCE: • Yes, I can assist the court in that
regard. Just to give you a brief history as to these
documents, the position is that when I had received
20 instructions about these documents, which pertained to the charges he's facing, as the court will be aware as the time goes on because of the trial that the incident upon which he's tried relates to him having attended the junior staff course at the army college where, as a result of certain
25 disputes amongst students and the leaders of that college, the IG of the army was invited to come and conduct an investigation and produce a report. My instructions are that when that had been done and/or when the IG was
• conducting his investigation, he interviewed a number of
30 students at the college. And also interviewed the officers in charge of that :college, ' and' the report was finalised and
handed to the Chief-of the Army, but Colonel Phiri was riot
called to that interview whereas •he had been part of the
interactions that had been investigated, and that therefore
35 he was aggrieved by,,that, that he had been excluded.
And then he then addressed a redress of wrongs in that regard.
JUDGE: Can I just stop you there?
DEFENCE: Ja.
5 JUDGE: How does that have a bearing on this case
here, the charges against the accused?
DEFENCE: Ja, it has a bearing in the sense that it
was filing that redress of wrongs that he was charged,
according to my instructions. And that all these charges
10 he's facing arise from that redress of wrongs. And also
the relevance of the report is that the report would have evidence of all those witnesses that were interviewed and who the prosecution counsel will utilise to this court as witnesses.
15 JUDGE: Right. But before she can call any such
witnesses, of course copies of their statements would have to-be given to the defence, isn't that so?
DEFENCE: Yes. We will be dealing ..
JUDGE: Or ... and let me get this on record.
20 DEFENCE: Yes.
JUDGE: Do you have the pre iminary inve=+-i
that was apparently done? gation
DEFENCE: .Yes, I have a report that the PI wa 5
conducted.
25 JUDGE: Mm. But do you have ...
DEFENCE: Although ...
JUDGE: ... the documents, the statements in the
PI?
DEFENCE: Yes, those. are the statements of the
30 witnesses
JUDGE: " Yes..
DEFECE: ... that have been furnished to me.
JUDGE: - I see.
DEFENCE: Yes.
2 062-0!Phiri(v0
JUDGE: But are they just simple statements, or
do they include what was apparently said in the Board of Enquiry?
DEFENCE: We don't know what was said at the Board
5 of Enquiry because we also need that record of proceedings. We don't know what was said before the IG because we also need that report.
JUDGE: Okay.
DEFENCE: Those are part of the documents, which we
10 have ...
JUDGE: Yes.
DEFENCE: ... Colonel Phiri will explain before the
court.
JUDGE: Counsel, and then was a
15 application made for the documents that the defence needs? Yes, these documents, initially DEFENCE: i
on
inir
his own initiative Colonel Phiri addressed a letter to
General Romano explaining these documents, listing them and
why he wants them where he did not get assistance. We came
20 to the court her- and explained before the previous court that ..
JUDGE: Yes, but please enlighten me because
don't know what it was all about.
DEFENCE: Yes, indeed, Judge. We explained to the
25 previous court that we are not getting assistance from General Raman°. The documents are not coming, and the court advised us, Colonel... (unclear) ...
JUDGE: The previous judge?
DEFENCE: The judge, the. sitting judge
30 JUDGE: Mm?
DEFENCE: said to Colonel "Phiri; "Okay, now
that the Chief of the Army hasn't fUthiShed yo•_1 with those -records go and apply for them in terms of• the Information Act. And then Colonel Phiri came to me and said, "Please.
35 assist me, Colonel Simelane, to have that application We completed a number of forms, after
processed."
20.62-03/Mr4v0
110 consulting with the officers involved at the information centre to compile a proper request. That request (1) was denied, Judge. We appealed in terms of the relevant Act. The appeal was also declined on the basis that he has now
5 been charged. These documents must be furnished to Colonel Phiri through the court process. That response from Dcotor Hendrickse who wrote that letter was furnished to the court and to my learned friend, and ...
JUDGE: To the court and your learned friend?
10 DEFENCE: Yes. And al...
JUDGE: Well, that means the previous court?
DEFENCE: The previous court.
JUDGE: Colonel LuUs? Who was
DEFENCE: Colonel Lutis.
15 JUDGE: ... the presiding judge?
the letter from Doctor Hendrickse, copies were judge read mareDEFENCE: Yes. The ... (unclear) ... available, and that the direction is that Colonel Phiri is furnished the documents through that process, the court process.
JUDGE: Sorry. Can we just get to of
the prosecutor at this stage? PROSECUTOR: Colonel, documents
defence regarding the request file in terms the
25 Information Act. To be quite honest and ... (unclear)
the decision regarding that exact requisition and the order made by the colonel, the prosecution is not clear about that a specific order was made by the court that these documents
30 JUDGE: You're talking about Colonel LuUs?
..... ..
PROSECUTOR: That's correct, by that specific judge.
JUDGE: Who . what order would have been made
by him?
PROSECUTOR: In .terms . or that the documents must
35 be available to the defence.
JUDGE: Defence Counsel?
2062 -03/Ph iri(vt)
DEFENCE: Yes, Judge, we wouldn't be making this
application formally. The point is that when those results
from ... regarding the Information Act were presented to
the court, and it was clear that Colonel Phiri's directed
5 to be assisted by the prosecution, the order wasmade, not in a formal sitting but he was still on the stage, but we were not on the ... (unclear) ... We had adjourned when Colonel Luils said, "Okay, Major, please when you come back next time these people must have been furnished with those
10 documents." It was not like an order. It was ... I looked at it that the previous court is avoiding a situation where we've got to sit and make a formal application like we want to do, just to advise ...
JUDGE: Okay.
15 DEFENCE: her to say, "Okay, give them the
documents", but it never happened.
JUDGE: Yes. Can I come in here and say that
DEFENCE: Yes.
JUDGE: ... I've never seen such documents.
Such
20 documents, if they existed, were never handed over to myself by Colonel LuUs when I took over as the senior judge in this case.
DEFENCE: Yes, Judge.
JUDGE: So I've never seen any such documents.
25 DEFENCE: Okay. There is ...
JUDGE: So I don't even know what it's all about.
DEFENCE: Yes.
JUDGE: But to put you in the picture .
DEFENCE: Mm?
30 JUDGE: the advice that I obtained from the
Director, Military Judges is that this court, myself,
don't have the power to make an order, let's say, today, any order saying," "This list ..." . what's that DOCtor?- Doctor Hendrickse?
35 DEFENCE: Doctor Hendrickse, yes.
a)61-1.413N1-6,4,0 ...............
112
JUDGE: I can't make an order forcing him to hand
over certain documents to you.
DEFENCE: No, we ... Doctor Hen...
JUDGE: Do you agree with that?
5 DEFENCE: I agree with that ...
JUDGE: I have no power to make any such order.
DEFENCE: No. He doesn't have the documents
either. He was ... he's just an officer that was dealing
with ...
10 JUDGE: Okay, ...
DEFENCE: ... the application. Yes.
JUDGE:... or any person who might possession of such documents, let's say, Director,
Intelligence or whoever he is, or Director, Personnel of
15 the army.
DEFENCE: ... (unclear) ...
JUDGE: I have no power, and that is :he legal
position as I understand it. I have no power to make any
such an order. Such an order, or this would have to be
20 dealt with outside, through the channels provided for by the Information Act. This court has no such .cower to force any other officer, or office to hand over those documents. That is the advice that I have obtained.
DEFENCE: Unfortunately we don't agree because if
25 he is like denying the ...
JUDGE: You know, I wanted to bring you into the
picture because
DEFENCE: Yes.
JUDGE: this is the advice that I got, and in.
30 the light of that you might want to reconsider your intention to call the accused.
DEFENCE: (No reply).
JUDGE:.. And to pursue the avenues that you have
adopted.
35 DEFENCE: Like which avenues?
• 2062-03,1Phiri.(vt) •
JUDGE: In other words, the administrative avenue
provided for in terms of the Information Act, and that the proper forum to deal with such an order is not.this court of a military judge but, the High Court it, would seem to
5 me. But if you like we could stand down for this issue to be considered further to obtain a legal opinion, proper advice.
DEFENCE Yes, it may be necessary, we may need to
consult in your counsel on those issues whether the 10 application if the case cannot be done today
JUDGE: So that one is not under the wrong
impression, and that in the end money and time is wasted by bringing an application to the High Court.
-"-
DEFENCE: Yes, we need
15 JUDGE: The point is we want to get on with this
trial in the interest of justice. A fair trial in the
interest of everybody, including your client.
DEFENCE: Indeed.
DEFENCE: Because that is the right of every
20 accused that he has his day in court and teat his case is dealt with as soon as possible. I don't have to remind you of that, or tell you that.
DEFENCE:yoU
Yes. I must say I fully agree with
and we must have all the papers to prepare for his defence. 25 JUDGE: But he must have all the papers to ...
DEFENCE: All the papers for his ...
JUDGE: So do you still wish to continue with
calling your client, for what it's worth?
DEFENCE: Yes —I-wish to •...
30 JUDGE: I have to bring you, or tell 'you at this
stage ...
DEFENCE: Yes. No we
JUDGE: . that according to his legal advice
that I have obtained. As the senior military judge in this 35 court I have no power to make an order compelling somebodY else to ...
2062-03Thiri(vt)
114
DEFENCE: Yes ...
JUDGE:. hand over any such documents yourself.
DEFENCE: Well, my. gut reaction, really, Judge,
5 would be that let it be your judgement. Hear him and come to a verdict. When you pass your judgement to make your orders and if you
JUDGE: Okay. I think that's the advisable thing
to do.
10 DEFENCE: Yes. It will close the matter.
JUDGE: To hear your witness
DEFENCE: Yes.
JUDGE: and you argue your case and you bring
your application.
15 DEFENCE: Yes.
JUDGE: And at that stage the court, when it has
all the information at its disposal can then .
DEFENCE: Make up its mind.
JUDGE: make up its mind, obtain further
20 advice
DEFENCE: Yes.
JUDGE: as you said the senior counsel's
opinion.
DEFENCE: Yes.
25 JUDGE: And come to a proper, hopefully,
decision.
DEFENCE: As the court pleases. Can you
call Colonel Phiri. JUDGE: colonel 2hiri,..you have been called by-•
30 your counsel.
APPLICATION BY DEFENCE
WITNESS NUMBER .1 9800.76932E. LIEUTENANT COLONEL GOODMAN
MANYANYA PHIRI (Hereinafter referred to as "ACCUSED") GIVES 35 EVIDENCE UNDER OATH
JUDGE: Carry on, please, Counsel.
DEFENCE: As the court pleases.
EXAMINATION IN CHIEF:
DEFENCE: Colonel Phiri, you're
making an
application to be furnished with certain documents in order 5 to enable you to prepare for your defence.
ACCUSED: Yes, Defente Counsel.
DEFENCE: Would you kindly inform this court as to
the documents you want? I believe you've got a list, which you may like to hand in to the court and from your list,
10 which you will have read each and every item, explain why you want it and its relevance to your case and the charges that will be put to you.
ACCUSED: As it pleases the court, I will submit
that list as well for the court's perusal while I'm doing
15 the presentation for the court, and I will submit the particular list together with the other documents, which would be of relevance that I will submit as exhibits in my application. But I was asking if I could give an overview of the issue of documents. My understanding why I think it
20 is not just right, it's the fundamental right that I should have these documents, together with my disappointment that it's a year down the line now and nobody seems to know-There's a ball that is being kicked hither and thither, nobody seems to want to take-responsibility of, as it looks
25 to me, of accessing to me my fundamental right as the
accused to know exactly. where the accusation stems from.
And nonetheless the overview I've got is in this case and I'll be ready, under cross-examination and further on during. the. trial. to substantiate. what I'm .going
30 to say. There is a widespread intimidation of myself. And potential witnesses who should come to the fore to getme. out of this, what I want to call, a fabrication of Charges, so for that reason it elucidates the need for me to ha.ve the documents because the documents will speak louder than
35 any witnesses, whether for defence or prosecution, because those documents were produced by the South African National
2062-413/PhiriOTO
116 Defence Force. That is one of the overviews I want to give forward.
The second overview, which I think this court should not take on lightly, I've heard the preamble
5 thereto, the judge saying that it would be very prudent to look before one leaps insofar as the issue of documents, to seek legal advice further on and I think that's quite important. Because the ramifications, or outcome, or implications of going ahead roughshod without enough
10 evidence, especially anything to assist me as the accused, they will be very serious for the court and for people institutionally involved with the court. What I'm saying in short is that I stand for the idea that it is better to make sure that we get these documents for however long as
15 it is necessary, so that when we arrive at the time of
pleading and to the trial, the playing field has been
levelled
I would not agree with the view that says it is serving my purposes to just get a speedy trial just 70 for the sake of a speedy trial, it shouldhave value, it
should have substance and a speedy trial wich Th
ont all e
levelling of the grounds would for me, with du.
the court, respect to
be just a kangaroo court ,1-1,-
-, • will have, like
J_ said earlier, ramifications. • The second point then I '75 conclude-it by saying that there is, as my defence counsel
said earlier on, a grievance procedure that started over a
year ago, whichthe
char court must also note, provoked _
ges.
I wrote a grievance. .today,
30 has to do •
with a Board of Enquiry that was conducted that the turnout
in the PI procedure that is being qubted;'and so not only
was I then charged, or not only was the. process of q-e
L....
grievance procedure criminalised in • this process by
. .
charging me thereafter for putting it, it's clear that 35 those issues that were in that particular Board of Enquiry
are being used to perpetuate this unfairness. Therefore
2062-03,Thiri(vt)
.. . . .
the grievance has been going on, Judge, please note, it is
still ongoing. I've had two letters written to the State
President after following all the channels. I.would like
therefore to just submit these letters, not for use in this 5 court, but for spare time perusal, whatever, but I'd like to submit them.
First, the letter written to the State President after all the due processes of the grievance
procedure dated 8 July 2002. I will submit it as Exhibit
10 "A". I will also submit a second letter, also written to
the State President as my commander in chief, dated 6 November 2002. That will be Exhibit "B". I want also to submit ...
JUDGE: Have you marked them as such, Colonel,
15 "A" and "B", or will you do so just now?
ACCUSED: Well, it's nor marked, Judge.
JUDGE: You're calling them Exhibit "A and B"?
ACCUSED: Exhibit "A"
JUDGE: Ja.
20 ACCUSED: ... there's Exhibit "B".
JUDGE: Okay, we'll ask Colonel Simelane to mark
them for us.
ACCUSED: Yes.
JUDGE: Okay.
25 ACCUSED: Then I will have, because of Exhibit "B",
there was an unfairness again, the compounding of the grievance that I have that the SANDF, through its own orders decided to take a second letter written to mY commander in chief and gave it • to. the. •press, therefore
30 wrote another grievance over that issue and then I've got here Exhibit "C", 'all '' the press cliPPings there were
ordered by the SANDF to be published, which put my ... both
this case procedure here very dimly ' at '' my expense. And in
my view it also was an undermining of the court, or the
35 power, or the authority of the court that other officers of
this organisation should, while the 'Court is proceeding, go
118 into detail, very graphical issues of what I'm supposed to have committed, without respecting the court.
So I'm submitted, ... (unclear) submitting as "C" ... this is "C", the newspaper clippings,
5 that is "C" and then I'm also submitting as "D" the response I got over a grievance I wrote to the Chief of the SANDF over the very publication of these issues. That also is "D" for the court, just for the court to have this, and then as "E" I'm submitting the list for ... that is the
10 documents that I'll go into detail about.
JUDGE: Okay. Just keep them there for
DEFENCE: Just give them here.
JUDGE: Give them to Colonel Simelane.
DEFENCE: Okay, we'll keep them right here.
15 JUDGE: Or can they be handed in at this stage,
Defence Counsel?
DEFENCE: Ja, we can .
JUDGE: You still need to refer to the documents?
DEFENCE: Ja .
20 JUDGE: I mean you are leading-your witness now.
DEFENCE: Yes. I still need to- mark them for the
court, yes.
JUDGE: Sure. Thank you.
DEFENCE: Yes, thank you.
25 ACCUSED: Judge, thanks for the opportunity, now
I'm going to go into detail of the documents I would like to have in my possession that would assist me to prepare for my own defence in these trials. They are 36 items of documents, and I'm going to start With the first one,
30 an order given by the APLA office. Just to elucidate,
Judge, I should think.still.this is still ... (unclear) .....
to the Mament where former NSF members have got something
of an organisation, or an office that looks at their particular interest with BMATT, especially on issues of 35 college, br courses.
2062-03anliri(v0
So there was an order given by the APLA office at Defence Headquarters to one Lieutenant Colonel Gunga, and this Gunga was Lieutenant Colonel Phiri's representative in a BMATT meeting in January_2001. I will
5 elu... now I want to give the reason, Judge, why it is important for me to have this particular document. That sitting with BMATT, which I attended, which was over myself, my supposed under-performance on the course is according to statements, affidavits given to me during the
10 PI is being quoted by one of the main state witnesses. And according to me, what is being said there in the affidavit is a total opposite of what transpired.
And the second point for BMATT that particular document is, during that process the chairperson
15 of the particular sitting of BMATT, who happened to be the same commandant of the college, and also happened to be the same person who charged me, immediately after my grievance procedure went ahead and flagrantly intimidated this Lieutenant Colonel Gunga. He actually ordered him to "shut
20 up" when Gunga wanted to speak on my behalf, but Gunga had been ordered by APLA to ...
JUDGE: Sorry, can I ask you, did this happen at
the same time as any of these charges against you
ACCUSED: It happened there some two
25 JUDGE: ...let's say on the same day:
ACCUSED: ... some two months before the whole, may
I call it "riot" on the college took place.
JUDGE: Ja.
ACCUSED: But still ...
30 JUDGE: Basically what I want to know is, is it
relevant to any of the charges?
ACCUSED: Very relevant, Judge, because the state
witnesses; in their affidavits from the PI are using, • they
are saying that I, for example, which is a falsehood, had
35 requested to move out of course, which is not true. And
the fact 'that there was an intimidation of this particar
2062-03/Phiri(vt)• • •
120 Gunga by the chairperson, in the name of Colonel Drost, is also relevant, so that one can see out of this document whether the actions of Lieutenant Colonel. Gunga by submitting himself to that intimidation whether it was
5 according to the order of APLA or not, because it's important, Judge, to note that anybody who represents any other in any sitting, the rank issue is, according to mY view, it should take second fiddle. But the lieutenant colonel was browbeaten by the colonel who happened to be
10 commandant of the college, and I was left to the wolves, SO to speak. That is why I would like to have that document, especially because it's being quoted by the state witnesses in this trial now.
JUDGE: I see defence counsel is looking at me
15 and probably noticing that I'm frowning. The point that I want to make is, this court . we must not co into too much detail here.
DEFENCE: Okay. I can say ..
JUDGE: Who ...
20 DEFENCE: . the point ...
JUDGE: The application is merely to, say
convince .this court ...
DEFENCE: Yes.
JUDGE:. that a certain document is relevant
25 to the . is necessary for the proper conduct of the
defence's case ...
DEFENCE: Yes. Okay, the point ...
JUDGE: without going into too
much
background and detail. 30 DEFENCE: Yes.
JUDGE: Okay.
DEFENCE:. , ......
I have no difficulty with that. Okay,
you can continue, Colonel Phiri, with- the- next -document on
your list. 35 ACCUSED:
The second document on list is, it's
reads thus, and I'm quoting "Document with Colonel Phiri's
2062-03,Thiri(v0
acceptance, or rejection of BMATT decision." The reason
why I want this document is obvious from the previous
document that there was a sitting involving myself as the
accused, but then prior to that it was the issue of mY
5 supposed under-performance on the course.
And that sitting of the BMATT obviously came out with a decision, and again, the crux of my request thereof of this particular document is the fact that it's being used by the state witnesses in this particular
10 imminent trial to just show just how so-called useless and how bad an officer I am. That is why it is important for me to have it, because probably that is the only thing that will, in the face of the earlier-on certified intimidation that is going on over this case, that is the only thing
15 that will save me from what I could call, "lies," emanating from the state witnesses. I would end on that point on document 2.
With the permission, Judge, I'll go to
document 3,. and I'm quoting here, "Copies of material
20 submitted to the office of the army instector general
implicating Lieutenant Colonel Phiri in any form of
misdemeanour while still at the South African Army
College." Judge, this could also be read, as I want the
document of the Board of Enquiry. According to the P1DC,
25 and I just don't have the section here, "If any member of the Department of Defence is negatively implicated in any Board of Enquiry, the order is standing clear as mud in the MDC that that particular process should be stopped immediately by the President," and •apparently this was not
30 done.
This I
must mention here because again a
state witness in trial is using that particular so-called
Board of Enquiry. .I have rib assurance whether it was or
not, although I have, as a fact, that the inspector general
35 did come to the college. But nonetheless the state witness
says in the affidavit in the preliminary investigation that
the particular Board was implicating myself. That is why think it is fair for me to have these records so that this court does not compound an injustice already done. And an injustice already grieved upon through a grievance
5 procedure that has reached no lower office than that of the State President. It must ...
JUDGE: Do you mean so that we can have the full
picture?
ACCUSED: I need ...
10 JUDGE: The whole background of ...
ACCUSED: I need the full picture. I don't have
the full picture.
JUDGE: No, the court needs the full picture.
Okay, you ...
15 ACCUSED: I need it more than the court I suppose
because I'm the accused and these Board of Enquiry issues are being used just to prove just hour so-called bad
and they are used in the PI and documents that will be used in this particular trial. If it's so, if it pleases the
20 court I'll go to the next document, which is document 4
I'm going to quote again, this one s,
"Copy of document or documents emanating from the lith
African Army College to Chief of the South African Array, or
to any of Chief of the South African Army's generals at
25 army headquarters relating to a so-called incident at the S A Army College in which. incident Lieutenant Colonel Fhiri was involved." Hence, "The Board of Enquiry
investigating key-related issues at that time, 6cFndeb::cly 2001."
30 Judge, the reason why I want this
particular document again, or number of documents, still
goes back to the statements, affidavits given to me through the preliminary investigation made by a state witness Or two, and I will not go into the detail of the name.
35 think the Judge wouldn't like me to go into many details, but I have got it here on record.
JUDGE: Could I, perhaps with the consent of your
defence counsel, I want to ask you, does he know who is in possession of these documents at this stage?
DEFENCE: You don't know, or who do you think might
5 be having those documents?
ACCUSED: Judge, your guess is as good as mine, but
it is obvious if the army inspector general conducts any investigation, surely, we are all soldiers we get orders, he must have got it from his supervisor. General Romano
10 must know where these documents are, and I think if an order is issued to the Chief of the Army he must be able to provide them, otherwise what are we goin: to say here, "anybody who wakes up like a loose cannon goes out and does investigations without orders."
15 JUDGE: Okay. Fine, thanks. Carry rn please.
ACCUSED: I want to go to document 5. This one, and I'm quoting here, "Copies of any writzen information exchanged between the Army Intelligence Formation and the South African College, or the general officer commanding,
20 Army Training Formation in respect of further JCSD." That is for your clarification, Judge, in the court, this here
is the course that I was .. or we were doing at that
particular time. "Therefore in respect of further JCSD
academic process for •Lieutenant Colonel Ph'ri who failed
25 one module and now is ordered to redo the entire course
despite achieving above the required aggregate pass." •
Judge, I must admit to the court that I am making a request for document 5 withou.: any single mindedness because as things to •tend•to happen, even 'though
30 an order was issued in December for me to unfairly,
.... something unheard of in the SANDF, redo a :CSD course I
. ..
passed, that order issued by the generals of the army, strange, had to be reversed by two lieutenant cOlonel, so I will only go and do the particular module. That was
35 after a big struggle. But for the purposes of this trial I
think I must still have the origin of these c:mmunications
2061-0/Phiri0.1)
124 between the army college and the army headquarters, especially the training formation, because I think a good precedent must be set here that subordinates are not there for the liking or disliking of seniors. There are rules
5 governing the SANDF and they must observed.
Nobody should wake up and just decide, "because I don't like the look of this particular officer, he can redo a course." We must all observe the rules, and I think this court must allow me to have these documents as
10 well so that we see what was the basis of ordering me to redo a course I had passed.
JUDGE: Can I stop you there again? Defence
Counsel, could I ask your client whether any of the persons sitting at the back there
are going to be called as
15 witnesses in this court?
DEFENCE:
Are there any who may ce called as a witness here, Colonel Phiri?
ACCUSED: Can I look at them, Judge?
JUDGE: Yes, please.
20 ACCUSED: Thank you.
JUDGE: Because if there is such a person,
preferably he shouldn't be here.
ACCUSED: .. (unclear)all
Judge, they are strangers. I will not call any of them.
25 JUDGE: Okay.- Thank vou.
ACCUSED: Thank you. Can I continue, Judge?
JUDGE: Ja. Please.
ACCUSED: Thank you. I was on document 5, now I'm
going to document 6 and I am quoting here, "Copy of records 30 of appearance on office bearing for three times with the chief instructor.. . ......... . .
-In this regard with regard to work being up to standard." Judge, once more these are ... this is a request for a doCument that .is being made mention of in the preliminary investigation, because I move that this
35 is a falsehood. And the only way for me to prove the
falsehood is for the document to be made available for me.
I will move to the next document, which I'm quoting here, "Copies of the seven incident reports on Lieutenant Colonel Phiri's file with regards to work not being up to standard." Judge, same as above, the reason.
5 This is quoted directly from state witness statement under oath during the PI.
The next document, which will be 8, "Copy of the document on which J S C de Brunt proposed that Lieutenant Colonel Phiri be withdrawn from the JCSD course
10 because he was out of depth and incapable of following study methods", or words pertaining to that effect. This document was handed to both Lieutenant Colonel Phiri and to BMATT, prior to the BMATT deliberations, which were chaired by the commandant of the college over alleged poor academic
15 performance by Lieutenant Colonel Phiri.
Judge, it is important for me to have this document because during the PI and the statements, again under oath, this document is alluded to whereby a state witness claims that he had come to my defence. He
had told the BMATT, on the college when leave the college. to continue reading me out. And my own and told to "shut denigrating my name
our English friends that I should stay I know better. He was asking for me to I had to stand alone and defend myself on the . (unclear) ... when he wanted representative from-APLA was browbeaten
up.,, Now, the same person, after
in front of 80 other students who were
junior to myself, in front of the class and saying, "I want
to pass by virtue of my skin 'colour," he turns now and
tells • the PI, tells the . prosecution that he in fact had
30 defended me to stay. Let us have the record and know
actually what indeed he said.
I'm going, with the permission, Judge, to
the next .dOCUMent,..9 and I'm opening quote, I'm say, "For
GOC Training Formation I need please an order or sworn
35 statement explaining communication between GOC Army Training Formation and Army Inspector General. The order
2067-0/Phir4v0
126 compelling, or necessitating the former to, not only ignore action on the document titled "Redress of Wrong" against acting commandant of the South African Army College, over the attitude of salute", dated 8 March 2001. But to also
5 send the said document to the Inspector General."
Judge, I need this document for the main reason that, as I said earlier on, no sooner had I written a few letters on redress of wrong than I was charged, the same charges that I'm facing today.
10 JUDGE: Sorry. Can I stop you there, through
your defence counsel again?
DEFENCE: Yes, Judge.
JUDGE: It seems the sum, or the most of these
documents you're referring to, could possibly be at the 15 Inspector general Do you mean inspector general of the
army, or what?
ACCUSED: Judge, indeed, most of these documents
will be available at the army college. They will be
available at the APLA office, if that division still
20 exists. The rest will be available at the office of Chief of the Army. There could be some available with BMATT as well, so all these documents are not really difficult to lay hands on. And if they were difficult, in any case, I would have long been told that they are difficult, but the
25 .reason I've got here down the line now is that nobody seems
to have the power.'to give them. It's not an issue of
they're not available. It's an issue of somebody's not
interested in giving them.
JUDGE: Okay. Defence Counsel, can he continue?
30 DEFENCE: He can continue. We are at the disposal
.. . •
of the -court. If the court for some reason would like to
adjourn so be it ...
JUDGE: • No,
DEFENCE: we can always continue
when we
35 resume...
compelling, or necessitating the former to, not only ignore action on the document titled "Redress of Wrong" against acting commandant of the South African Army College, over the attitude of salute" dated 8 March 2001. But to also
5 send the said document to the Inspector General."
Judge, I need this document for the main 'reason that, as I said earlier on, no sooner had I written a few letters on redress of wrong than I was charged, the same charges that I'm facing today.
10 JUDGE: Sorry. Can I stop you there, through
your defence counsel again?
DEFENCE: Yes, Judge.
JUDGE: It seems the sum, or the most of these
documents you're referring to, could possibly be at the 15 Inspector general. Do you mean inspector general of the
army, or what?
ACCUSED: Judge, indeed, most of these documents
will be available at the army college. They will be
available at the APLA office, if that division still
20 exists. The rest will be available at the offic4=, of Chief
of the Army. There could be some available with BNIATT as well, so all these documents are not really difficult to lay hands on. And if they were difficult, in any case,
would have long been told that they are difficult, but the
25 reason I've got here down the line now is that nobody seems
to have the power.—to give them. It's not an issue of
they're not available. It's an issue of somebody's not
interested in giving them.
JUDGE: Okay. Defence Counsel, can he continue?
30 DEFENCE: He can continue. We are at the disposal
of the court. If the court for some reason would like to
adjourn so be it ... JUDGE: No,
DEFENCE: we can always continue when we
35 resume...
2"--32-0.-3/Phiri(/1)
JUDGE: I don't know why my assessors what
the assessors, how they feel at this stage. No, we can
carry on.
DEFENCE: Yes. We can indicate to the court ...
5 JUDGE: Unless .somebody needs a water break or
something.
DEFENCE: Yes.
ACCUSED: I'll be the first one, :udge, with your
permission, but not as yet.
10 JUDGE: Right. You're welcome.
ACCUSED: Judge, if it pleases the court I will
give the reason why this particular document I would like
to have in my possession. This was amongst the first
grievances written which, as I said earlier, provoked the
15 charges. This grievance was written to the General Officer Commanding, the Training Formation of the Army, retired General Steyn. It had to do • with an issue where I was assaulted during office orders by the acting commander of the college.
"-)0 He assaulted me because = was on this
office bearing, and then on his order that : should leave, at the end of the office bearing, I naturally saluted him, and then he ordered me, "leave the office" again, and then asked me why was I standing there. And I said, "Colonel, I
25 was expecting a salute back", then he physically assaulted
me. So I wrote a grievance over this issue to the GOC,
Army Training Formation, General Steyn. Six months passed
and I ...
JUDGE:. Okay, sorry, can I just s:op.you
30 Through your defence counsel again, does =his have .
.
any
bearing on any of the charges against you in the charge sheet?
ACCUSED: It hasthe
every-bearing', ' Judge, because
my a... the person who assaulted me, the acting
35 commandant now the following day, after writing the grievance, he had written the statement. He said ... it's
128 one of the charges ... he said, actually I saluted the wall. He changed everything round, so it's important for us to find out this particular communication between GOC, Army Training Formation and the acting commandant. I want
5 to correct that. GOC, Army Training Formation or the un¬sworn statement explaining communications between GOC, Army Training Formation and Army IG.
I had to go I did go to General
Steyn, six months after my grievance was not responded to
10 according to the MDC, and I said, "General, I may have to charge you, you did not respond to the grievance procedure as in the MDC", and General Steyn told me he was ordered by the inspector general of the army, the very same general who did a Board of Enquiry to my ... (unclear)... He was
15 ordered by him not to respond because I'm a criminal. That is why it's important to know whether General Steyn was making this up, or indeed the IG did order him. What is to me puzzling, how can one brigadier general order another one to carry an order, which is blatantly illegal? •Nobody
20 has the right to reverse laws of the MDC, but I want to know then in writing. That is why, Judge.
With your permission I'll go to the next document, document 10, and I'm quoting here, "Copies of gate pass register from South African Army •College, the
25 junior command duties' branch for the period 5 February 2001 to 8 March 2001." I would like to have this document, Judge, because not only are potential witnesses being intimidated, and myself too, to come out into the open and make statements that will say me; as the accused, that I'm'
30 also ... the charges are actually added up by those that
suggest that I was absenting myself without any permission .....
on the course.
.So-I'believe that the only thing, or the
only means to save me from these charges is for the
35 statements that will come from the gate pass. I don't want
to go into the detail of the charges, but the gate pass
will clarify who went out where, what time and if I had permission for that particular day because at no stage do I see myself in the past or the future, Judge, as a senior officer leaving the premises, but that is the charges.
5 don't want to expand too much, Judge, with your permission.
But then, if you allow me, Judge, I will continue to the next document, which is 11 in this case. I'm quoting here, "Copy of documentation exchanged within the South African Army College and the General Officer
10 Commanding, Officer Training Formation regarding the inclusion or exclusion of JCSD staff papers as a failing subject for the period 2000/2001." Judge, if you say to me this one has no relevance to my case, perhaps I would accept that, but the reason why I would have loved to have
15 this document is it would help to show the plethora, and the number, great number of means that ha7e been used to victimise me.
One of which is the issue that even though I passed the course, my certificate has been denied
20 me. My promotion has been denied me, and I'm sitting here when most of my colleagues I was on the same track with, are brigadier generals. But I'm sitting because of the
victimisation, I was made to fail the course. Tt ter uld
have helped me a lot to see- what was this communication
25 that existed between the Training Formation and the South African Army College so that we know whether the persons who took certain act...
(End of tape 6)
(Transcription commences on tape 7) .-
30 actions in regard to my performance
on the course, Whether they did that legally, were they ordered, or whether they did it out of malice, which I would like to believe it was out of malice. In any case,' the short and long of it, Judge, .
35 DEFENCE: Are we still recording here?
130
JUDGE:
the next one. DEFENCE: JUDGE:
5 DEFENCE: ACCUSED:
Yes, it has automatically gone over to
Oh, okay.
Ja, there are two tapes. Thank you. (unclear)
If it pleases the court, the short and
long of this request, Judge, had to do with the order that
we, as officers under instruction were told at the
beginning of the 10 months or so long course. We were told
10 that staff papers, which is a research paper, were so compulsory that if you did not make it, then you
would not
be able to get your certificate.
And it so happened that about five to 10. officers under instruction did not pass the staff papers,
15 and yet during the misunderstanding that resulted in the Board of Enquiry, they were then ... and then at the time when already I was now singled out for victimisation those particular officers under instruction were allowed their
certificates, because they had their aggrecate right. So
20 my argument is, Judge, was same applied tc me? if there
was a module I failed and passed on adgregate was
supposed to be given my certificate, but that was not done. Judge, like I said earlier, if you say to me, is not very relevant", I will .accept that.
25 If I were to go to the next one, with
your permission
JUDGE: Carry on.
ACCUSED: "Open court's copies of..." that is 12,
Judge. "Open Court's copies of all documents received by
30 collectively or individual directing staff for the purpose Of'direttina staff's own perusal, and/or for the purpose of handing over to Chief of the Army, or the Army Inspector
General in pursuance of the welfare of itproyetent on one
officer under instruction grouping or another, which might
35 have perceived itself to be detrimentally affected by the
Army College conflicts that came to a head in the period December 2000 to March 2001."
Judge, I must just admit that here the
language is a bit convoluted but in short what I would like
5 to have here is communication in writing that did, from the
• •
look of things, emanate from the Army College where black students, because of their colour of their skin had, as a group, put in a grievance. Or white students, or officers under instruction had as a group put in a grievance because
10 of a grouping that felt it's right, for lack of a better word, were not being addressed.
Judge, why I need this is because it is my contention that as I sit in this court, I've laboured under these charges two years down the line because I'm a
15 scapegoat of a race war that started on that college because of had management, because of bad Leadership. Co they had to single me out as a way out to explain why there was this. The court may actually have to take this, and it's a fact that there was in fact a grievance that was put
20 by white students that they were being disc-iminated against by the course chairperson who 11.,-=coned to be a former MK member. So the whole thing deteriorated into a race conflict and at the end of it they had to cover also issues because there was also the issue of some looseness
25 by a certain major, a female there, who apparently had to sleep with an instructor to pass her course.
That was the complaint of the white students. They said to the course chairperson, "Why are
• you quick to • point • •out our shortcomings- as • white
30 instructors and students but you don't ... you leave your own sister to sleep around to pass?" • So it was a race thing, but then because I had to of speak what I'd seen then I'm ending up as . a Vittit. I would like to have this document because it . will clarify just where this whole
35 conflict emanated from, Judg
132
With your permission I will go to the
next document?
JUDGE: Yes.
ACCUSED: This would be number 13, "Copy of
5 computer printout of entry to army headquarter's strength, that is Dequar Road, by all personnel during office hours for the period 1 February 2001 to 6 March 2001." T need this document, Judge, for the main reason that I've been charged over this very particular incident for being absent
10 on a place of parade, when, not only was I out per permission but I was in my car, driving to junior officers of the ranks of major and I went with them to the army headquarters, but they, like I said earlier, are being intimidated not to give me statements today. What is going
15 to vindicate me, Judge? It's on the copies of that entrance that I was with these two particular individuals, one of them being_Major Sereko and the other one whose name is escaping me.
JUDGE .Again, Again, through defence counsel, does 20 have a bearing on any of the charges?
ACCUSED: Yes, Judge.
JUDGE: Okay.
ACCUSED: It is a charge of absence from place of
parade, and I'm saying that on that particular charge why
25 am I singled out for charges? If it was a real AWOL why are the people who were in my car ... I had to drive them with my car, are not charge? That is why it's SO important.
JUDGE:. Okay.. Stay with that.
30 ACCUSED: Judge, thank you, I would go, with your
permiSsibh, to the next One, which is 14, and I'm reading. ............
now, "Copies' of 'documentation exchanged between the S A Army College and• the general officer commanding Army Training Formation regarding officers under instruction who
35 failed one module of the junior command staff duties course 2000-2001 'in view of the changes in the course curriculum."
2062-0/Phiri0i0 ...........
There's a similarity, Judge, between this one and the previous one. One of the reasons why I had ... for lack of a better word, been illegally ordered to redo -a course I had passed, it was said that the curriculum had changed so
5 I couldn't find the module that had to be repeated.
It was after I had discovered that some other students are allowed to do the module and wrote my last grievance letter to the State President that there had been this leeway now that they accept that this was
10 actually a fraudulent reason. In any case, if any curriculum is going to be changed officers are renowned, of all professions of precision, they plan beforehand. They look out otherwise the enemy will hit you and you'll never know what hit you. They should have foreseen that when
15 they changed the curriculum some officers under instruction might fail, so I want that document to see if that eventuality was considered.
It's important again, Judge, to have this document because again I am being painted, by
20 witnesses in the PI, that I am this irresponsible officer Furthermore, the fact that the victimisation iq not confined by any means to the Army College, it is as wide as my own formation. It is as wide ... it goes bigger and bigger and every day• it's getting bigger and bigger just
25 because of the most ... the officer who is my supervisor, so to speak, at the college did not want to act, stand to be counted.
Judge, with your permission I'll go
the next one, which is 15. "Copies of all documents
30 exchanged between, on one hand, the S A Army College's
. .
diretting—Staff as a group, or as individuals and the ..................
Officer under Instruction Committee of the said Junior
Command. Staff Duties Course, which was headed .by-CoIcinel—K.
E Makle. DocuMents submitted to the directing staff by
.... . . . .
35 individual committee members in pursuit of their
2062-0/PhiriOr0
134 portfolios, example security member of the committee must also be included."
Judge, the reason why I want this
document is I have been given copies of some of these
5 exchanges between the committee and the directing staff of the college by the chairperson, or former chairperson Lieutenant Colonel Matley who now has left the SANDF, and is working for National Intelligence. But he too is being intimidated now. He tells me he cannot appear to this
10 court, and he's the person who's supposed to have been there when I was supposed to be saluting walls or
calling
"F" words to my seniors.
It's important then to find the official version venture, not what Matley gave me because on the
15 test by the court it may prove that actually perhaps Matley is not. a very loyal person who wants to speak his mind, but he gave me some documents' ... failure to get this particular request, Judge, will compel me to fall back to what Matley cave, which I wouldn't like to, but definitely
20 there was a lot of correspondence between Lieutenant Colonel Matley. He was very censorious about the way the college was being run along in his view, and the
view of
any other black officers under instruction
along white
racial lines. JUDGE:
ACCUSED: JUDGE:
before you go ACCUSED: reason why I well the mist the court now, JUDGE:
now, are you? ACCUSED:
1 5 .
2062-03/Phi ri(vt)
JUDGE: 15?
ACCUSED: Yes.
JUDGE: Okay. How long is the list (unclear)
... Up to number what?
5 DEFENCE: The list goes to number
JUDGE: Number 36. Good. Can we take a break
for five minutes?
DEFENCE: Yes. As the court pleases we can take a
break.
10 (Recording machine was switched off)
JUDGE: The evidence of Lieutenant Colonel Phiri
continues after a short adjournment.is
The witness
reminded that he is still under oath. He may be seated.
ACCUSED: Thank you, Judge.
15 JUDGE: Take the microphone.
DEFENCE :As the court pleases, Colonel he
was still giving evidence. You may continue from= you left off on the documents you have applied for ... we are applying for.
20 ACCUSED: As it so pleases the court, I had just
finished, prior to our last adjournment, I'M going to document 16, which I want to quote here, it's, "Copies of marked sheets of evaluations for the following officers under instruction" and I would like
would request
25
that they be clearly marked in respect of the instructor or instructors who conducted the said evaluation for the entire course we wrote, and the officers in question are "Lieutenant Colonel Mogotsane, .Lieutenant Colonel Phiri, Lieutenant Colonel Matley, Lieutenant -Colonel Mobelo, Major
30 Erasmus, Major Booyse, Major Putter, Major Barn, Major Begwa and finally Major Khumalo.".
................
The reason why this would be relevant for this trial, Judge, is to give the background under which the charges I will repeat.that, the background against
35 which the charges have been formulated, which had to do with -victimisation for a number of reasons among which for
2062-0/PMr4v0
136 being whistle blowers. It so happened that during that par...
JUDGE: For being what?
ACCUSED: Whistle blowers.
5 JUDGE: Whistle blowers?
ACCUSED: Yes.
JUDGE: Okay.
ACCUSED: We were exposing this conduct that was
taking place as students, or as people who felt
10 certain things are not happening according to officer etiquette, whereby officers under instruction were given, reportedly, preferential marks on the basis of their skin colour. That is I, the black officer, for example will give another black good marks, and I, as the white vice versa,
15 so it also happened that there were also allegations that, in fact, even ended up in a statement, orthat was produced by the officers under inst:u:=nt called a debrief at the end of the course where it
very clear that fraternisation with female students byc:::
20 males, one particular male being an instructor was also --- played a vital role in granting unfavourable marks, which ultimately caused the racial conflict the:. I earlier on mentioned. Because the particular officer
under
instruction was a black woman and the instruct
or was also
25 black and the whites felt it's unfair, and the chairperson of the course was very differential, he was not being' fair-handed. He was like defending this reported unfair granting of marks with apparent sexual favours.
•
•
it will important then that 1
h
30 have it so that it shows just how prevalent the miscsonoduuCd
-t
by the directing of the college was, which they t
to hide by charging me.
With the permission of the judge,
go to the next document, which is, "Order received b;:°:
35 army Inspector General to conduct the exercise • he
subsequently conducted at the S A ArmY College over the
period February to March 2001." That is document 17,
Judge. We have alluded to this one before where we wan... we said, when we were discussing the issue of'where these documents could be. Surely the inspector general must have
5 received an order, most probably from the Chief of the Army, and it would be important to see, for me due to the allegations made by state witnesses on the PI that the particular investigation was conducted over issues relating to Lieutenant Colonel Phiri's misconduct.
10 I think the only reliable facts we
have is from that particular order written by, ostensibly
y General Ramona, to see how truthful this particular state witness is.
Judge, if you allow me I'll go to the
15 next one. It's 18, and I'm quoting here, "Copies of material submitted to the office of the Army Inspector General implicating Lieutenant Colonel Phir' in any form of misconduct whilst still at the S A Army College." Judge, this one is important again to trace back and see that if
20 indeed, as I read out in the previous request or document, if indeed that the Chief of the Army had Issued a particular order that was relating to my supposed misconduct that had to be investigated through a Board of Enquiry, surely there- must have been a document or a
25 statement submitted by the college itself to the effect of my supposed misbehaviour.
It is important to have this particular
document 18, Judge, because once more the statements under
oath in the affidavit of state. •witnesses; they allUde 'to
30 this where they say there was a Board of Encuiry involving
myself for which they say they justify. why I. shguld be
charged.
Judge, with your permission the next
document is 19, and I'm quoting here, "The copy of a x-iocit-
35 submitted by the office of the Army Inspector General to
Chief of the Army or the army council etcetera. At the end
of the Army Inspector General's query, I use the word "query" carefully here, query preliminary investigation. Query report of enquiry at the South African
JUDGE: Sorry. How do you spell that word?
5 ACCUSED: It's que...
JUDGE: Query?
ACCUSED: Query.
JUDGE: Okay.
ACCUSED: Sorry about the pronunciation, Judge.
10 JUDGE: No, maybe yours is right.
ACCUSED: But the reason why this is again
important is the fact that when I tried to have a
contribution in this particular Board of Enquiry or
preliminary investigation I was to be told by one inspector
15 by the name of Colonel Magdalena White who was also
apparently one of the officers, or inspectors whowith
were
the inspector general at the college. She told me that the
particular investigation or Board of Enduiry had been
completed and a .report had already been submitted to the
20 army council, or some other organisation. To that effect I was too late. So it's quite important actually to know was there a Board of Enquiry? Was there it over myself as claimed by state witnesses, and was it a preliminary investigation, what is it all about? How can I stand,
25 Judge, and plead in this court over illusions of a board that I have no knowledge about, I have no cognisance about.
I hear they involve my name. I wrote grievance after
grievance without being accessed. That is why it would
help the court and myself particularly to have a clarity on 30 this one.
Judge, with your permission the next one . ..
is 20, "Order received by Army Inspector General to conduct the exercise he subSequehtly' conducted at the S A Army College over the period February to March 2001."
Judge,
35
this one, at the back of my mind, looks like a very similar
one we attended to earlier on. Nonetheless there ought to
have been an order, and like I said earlier on, all of us officers work under orders otherwise our actions are quite questionable, and probably illegal.
I would like to have this one, if indeed 5 there was, such an order, so that if indeed it
turns out
there was no such an order, nobody had requested
the IG to come to the college. He did it on his own because he hates Colonel Phiri, forlaw
example, that due process of the should take place against that particular general.
10 Judge, with your permission I'll ...
JUDGE: Sorry, can I ... before you move on just
make a comment, or ...
DEFENCE: You're welcome, Judge.
JUDGE: ask a little question through your
15 defence counsel. It seems to the court at this stage that
all the documents referred to up to now are somewhere within the S A Army or S A Defence Force. Tz.. that so?
DEFENCE: It looks like that.
JUDGE: You also affirming that?
20 ACCUSED: Yes, Judge, all the documents are
available within the SAND F.
JUDGE: Mm.
ACCUSED: About 90% of them are within the army S A
Army and a sizable amount, say about half of them are in 25 the S A Army College where I was charged.
JUDGE: Oh, thank you. Continue.
ACCUSED: Judge, 21 reads as follows, "Copy of
and I'm quoting a statement made here, Judge, under oath by
one of the witnesses during the 'PI. He's saying, and now
30 Trm asking for the copy of, and I'm"The
quoting him,
. ......
Selection Board or BMATT report, which stated that the Army. College's JCSD branch recommended Phiri's withdrawal from .„ ...
the course after failing milestone 2."
Judge, this particular document..
35 requesting or the reasons thereof have already been touched upon earlier on as this a claim that and I want to read
again to refresh myself, "The Selection Board report stated that the branch recommended Phiri's withdrawal from the course after failing milestone 2." It's basically a sentence I'm quoting directly from a statement from one of
5 the state witnesses, and it's difficult for me to follow what he is actually trying to convey here, hence quoting verbatim. But I would like to have that document
whatever it means, because it's really confusing, all I know is that it put me in a very negative light. I would
10 like to have it, Judge, with your permission.
The next document, Judge,
15 Colonel Drost, this gentleman is actually the acting commandant of the college. He claims, in his incident report dated 7 March 2001, that he himself proffered Lieutenant Colonel Phjri office orders or 7 March 2001. Judge, just to clarify this has to do with a similar issue
20 where I had requested a requesting or return of my salute at the end of office bearing, and I was assaulted instead. That is where now this further claim is made that, or this document was supposed to have been proffered or offered to myself and it says here I refused to sign,
something to
25 that effect.
I would like to have that 'particular document because it's not in the PI document, and as far as I can ... my recollection there was no such a document. But, if •indeed it-is there, I would-like to have a look at
30 it for the fairness and for me to prepare for this
particular defence against this particularstate.witness.
Judge, with your permission document 23 I Would really love to have it. I'm quoting here, "Copies of all office bearing occasions the commandant, or the acting.
35 commandant, the chief instructor and the course leader ever
held with any and all officers under instruction on the
course, which was started 13 August 2000 to 9 March 2001, and office bearings ordinary instructors of the GOC branch might have had with officers under instruction'to be also included."
5 Judge, what I'm trying to convey here
with this request of this group of documents is just to see the prevalence, if any, of office orders, or office bearing during the particular course, or the period of the course as far as the rest of the officers under instructions were
10 concerned. This is important for my case, Judge, because the impression is being created when you read the affidavit of the state witnesses that one of them say something like "seven office orders for Phiri." It is imoortant to see so that there's a comparison to see just hour often these
15 office orders were called, and if indeed other officers under instruction had no, or very few office orders, then to see just how bad Lieutenant Colonel ri's behaviour was.
If it turns out for the court that I'm
20 not as bad as I'm being painted then the question will be carried further, what sanction is there for officers who lie who make statements about other offir-er'4, other members of the department just because they don't like 4.,____?
,....,,,,,,. .L
7'4- r ,
L
-
quite important for me to se... to have these so that I
25 also know whether the people who were supposedly sleeping
with the instructor to pass their courses were also called
on office bearing, whether those people who were giving
marks along racial lines were also called on of fice
very much important:
Judge, allow me go to the
which read*, "Copies •o.f, office bearing
(b) Keeping unhealthy and scandalous relationships with the course officers under instruction of the opposite sex, or any other similar offence.
(c) The granting_ of favourable treatment
5 to white students by any white instructor or directing staff member to the detriment of any, or all, black officers, whether directing staff or officers under instruction.
(d) Also the granting of favourable
10 treatment to black officers under instruction by any black instructor or black course committee -amber to the detriment of any, or all, white officers undr instruction whether directing staff or officers under instruction."
Judge, the reason why I need this again
15 is to create for this court, paint the picture for this court the kind of milieu, or the circumstances under which I ended up as the sole victim that I could not have been responsible for all this behaviour which are in black and white on the course debrief, for example, where marks were
20 given on the basis of apparent sex favours. They were aiven on the basis of skin colours, and it was a hell of a chaos on that college. It will also help to see if indeed the college still had the substance and the character, the leaders thereof to call to orders instructors including:
25 officers under instruction who were not behaving according to the norm that us officers have been taugho from day one as to how officers should behay.
Judge, with your permission I'll go to number 25, which I'm reading,. Copy of minutes of WATT.
30 Selection Board Meeting, which was chaired by the commandant of the collegei 'over Lieutenant Colonel Phiri, that was in January 2001. Judge, my reason has been touched upon also earlier on as this one ghat the BMATT said that there was a representative who was sent by mY
35 former force, APLA, to talk for me, and this gentleman was
told in no uncertain terms not to participate, and he
didn't. And then there were obviously findings after the end of that sitting. I would like to have the Minutes. The reason being that statements are again being made by state witnesses in their affidavits, which are actually the
5 opposite, or even the travesty of what actually took place there.
It's also going to help me, Judge, as I've said earlier on to prove my case as an innocent man because there's this overall intimidation. I don't even
10 think Lieutenant Colonel Gunga, my representative would be prepared to come to the court. He has refused, up to now, anyway to give me any affidavit becauSe of intimidation. Everybody's talking about the bread and butter issues that they're going to lose their posts.
15 Judge, with your permission I will go to
the next document, which is now numbered here
JUDGE: Sorry, before you go further, what's the
name of that person?
ACCUSED: The representative was Lieutenant Colonel
20 Gunga. I can give you that spelling.
JUDGE: Can you just write . nc, just write it
down there in brackets please. You can continue.
ACCUSED: Thank you, Judge, as it pleases the
court. Document 26, "South African Army College
25 Commandant's sworn affidavit with a list c' all telep hone numbers, home, cell phone, whether private or employers and office numbers of JCSD Course 701G372200002, also tendered by Lieutenant Colonel Phiri, the accused." I will like to have, Judge, similar numbers for members cf the'directing
30 staff of the branch.
JUDGE: -Can I ask you, through your -defence.
counsel, for what purpose?
ACCUSED:-..... Judge, this also only will help to show.
this court of the kind of .. for lack of a better word,
35 wrath that was taking place during that course where
command and control as we are taught in the South African
National Defencethe
Force was being undermined by instructors, where any instructor, according to the debrief of the course, he was the chief instructor, and.by the way, one of the state witnesses against Lieutenant Colonel Phiri
5 was supposed to have ordered, he's a white colonel, retired, was supposed to have ordered white officers under instruction to lay complaints directly to him over ... in other words, jumping the channels of the course leader who happened to be a black lieutenant colonel.
10 For the issue of racism :ere, it would be
important therefore for the court to see the veracity, or lack thereof of any of these so that the court may, at the end of the day, decide whether Colonel Phiri is sitting in front of the court because he's a victim of white racism,
15 or not. That is why I think it is important for the court to have a request of these documents because they can be traced on the basis of the argument made that the particular instructor, now retired, had told fellow white students to actually have nothing to do with the
black
20 supervisor over them.
Now, those telephone
JUDGE: Okay, can I just ask you through your
defence counsel, you are possession of the 21, does . is
that person referred to, this retired colonel, is he a
25 witness who will ... who has given a statement in the PI? ACCUSED: His name is Colonel retired Colonel
Hendrik Beyers Kleynhans.
JUDGE: Okay.
ACCUSED: He has given .a statement, and there is
30 also a statement given me by the .
JUDGE: Okay, if I lobk. at the charge' .Shee-t-
..
notice here there's a Colonel KleynhanS
ACCUSED: Thank you, Sir.•
JUDGE: So, obviously he would ,---,
-- a prosecution
35 witness, isn't that so?
ACCUSED: Yes, Judge.
2062-03/Pliir4v0
JUDGE: Mm.
ACCUSED: All I need to see is the frequency of
phone calls made by black students to their black
instructors vis-a-vis the frequency made by the same black
5 students to white instructors. I do not expect at this day and age of ...
JUDGE: But what will the court, hopefully, learn
from that?
ACCUSED: The court will be able to learn if there
10 is a prevalence of phone calls made to white instructors by white officers under instruction and phone calls preponderance of phone calls made by black officers under instruction to black instructors that, I think the SANDF has got a bigger challenge with transformation. On a
15 course we're supposed to ...
JUDGE: Sure. There I agree with you but ... ja•
ACCUSED: And then if it can be lorc7=d that this is
what is happening then the court will be able to see whether, at the end of the day, I'm not being
20 scapegoat, which I'm saying I am, and a victimthoisf victimisation for speaking my mind-
JUDGE: Defence Counsel?
DEFENCE: Yes, we can proceed then.
JUDGE:. Okay.
25 DEFENCE: Thanks.
ACCUSED: Thank you,the
Judge, as it pleases
court. The following document I would like to have is . DEFENCE: ... (unclear) ... number?
ACCUSED: That-would•be -number -27
30 DEFENCE: Number 27?
ACCUSED: Yes. Judge, I would like this one for a
change on a stiffy. It 'must be an electronic document,
Microsoft Word format, a file' copy therefore. I wouldn't
like, Judge, if this is a transcription or a copy and
35 paste. It is the affidavit of witness 1. He happens to be the same colonel we referred to earlier on, and this
2062-0/Phiri0/0
information is available on the S A Army College computer system. That makes it even a lot easier:
Judge, there is a statement here that is
in the PI as an affidavit of witness 1, and I'm
prove to this court that there was a coaching of
witnesses, that the charges emanated from one person
telling the other, "You must say this." You look at that
statement and you look at another statement written by
another state witness, you find the same thing, just small
10 alterations there. And I think Microsoft Word has got the capability of making one see the timings, for example when these particular statements were made between the two, or different state witnesses and issue of that nature.
Judge, I'm not going to be very strong on
15 this one.
If the judge feels you're pressing too much, can relinquish this one, but ...
JUDGE: Yes, the point is we can't go too wide.
ACCUSED: Yes, Judge.
JUDGE: We are bound by the four corners really
20 of the charge sheet.
ACCUSED: Yes, Judge.
JUDGE: Okay.
ACCUSED: I can, in any case be able to demolish
the witnesses by the comparison.
25 JUDGE: But who . okay, background information
that might be relevant ...
ACCUSED: Yes, Judge.
JUDGE: ... could be allowed.
ACCUSED: Judge, with your permission .I'11.1)..to
30 the next one, which is "Copies of JCSD branch proposal or recommendation to—BMATT—SeleCtion Board during Jal.1-1Eitl/
concerning Lieutenant Colonel Phiri. The document to be
accomoanied by a .sworn affidavit from directing staff
member to the effect, it is the original writing handed to
35 Lieutenant Colonel Phiri prior to the deliberations with
2062-0/T11410/0
147 the BMATT sitting of Lieutenant Colonel Phiri, as chaired by college acting commandant."
Judge, once more the state witness
mentioned earlier on who was the course leader who many
5 say, on the course, was together with the chairperson where they actually ... they were the two combatants in during the course, the chairperson, a black fellow, who was now left the SANDF and this particular instructor who happened to be white. They were the two combatants, but
10 now he says, this particular state witness and the white colonel, he says that he had requested, it's now in the affidavit, that I be kept on the course and continue'rather than be sent out for under-performing, and I know better. I was given a statement prior to having a talk with-the
15 BMATT, chaired by the commandant of the college, and it said, in no uncertain terms that I should be kicked out of the course because I was under-performing. I was going to get better assistance in my own unit.
I would ... I had to go in then and
20 defend myself on my own with my representative given the orders to keep mum, that what's the point, you're taking me out of the course now, you say I must go back to the unit. There's no instructor, there are no
books, and you
know
yourself there's nothing actually happening in the unit.
25
We are not at war. Perhaps if we were at war I would have better experience. We're just sitting. I have to stay on this course and bite the bullet, but now in the statement ... affidavit the same gentleman now says he actually
saved
me and he was actually telling 80 majors in the _class,
30 claiming that he had saved me. I am unthankful.
I
want to. 'pas's' by virtue of my black Skin'tolour',"whichj:: very insulting. In any case that has been-addressed in the grievances-of which you've received exhibits, Judge.
JUDGE: Okay. Can I ask you, Defence Counsel,
the list that your witness is reading from ...
DEFENCE: Yes?
2062-03Thiri(vt)
148 JUDGE: ... is that also intended to be handed to me?
DEFENCE: Yes.
JUDGE: Okay. The colonel on my right is making
5 a list, but I'm glad to hear that we are going to get that list.
DEFENCE: Yes. The list will be handed in, yes.
JUDGE: Mm.
ACCUSED: It is going to be Exhibit "E", Judge.
10 With your permission I'm going to continue and just try to find my steps here, I would be on number ...
DEFENCE: 30.
ACCUSED: Number 30?
DEFENCE: Yes.
15 ACCUSED: Thank you, Defence Counsel. These are
copies of rollcall books or attendance re;:ister that is inclusive of parade rollcalls over the oeriod 5-8
2001 for officers under instruction. Full details March
t
also admitted in terms of the persons who conductedot:
20 parades in question. Judge, if there would one document I would say, "Let me have, if I have nothinc else, this is the particular document."
JUDGE: This is number?
ACCUSED: Number 30.
25 JUDGE: Okay. What is it about?
ACCUSED: I'm charged for being absent from a place
of parade, two charges thereof. There is not
.
know what parade it was for, there is no timing:th there ::there
no rollcall, there's no showing who else was there on the
30 parade, and it's a travesty of justice, Judge. That is the only reason I can say. It's two Charges ... this is it. Let me have the rollcall please,
Judge. I'm pleading. If
I were to continue ...
JUDGE: Sorry, can I just come in here? Defence
35 Counsel, have you ever seen the Board of Enquiry?
DEFENCE: No, we're looking for it.
It's part of the documents we haven't received. JUDGE: Yes. And with your permission- can I ask your client?
5 DEFENCE: Yes.
JUDGE: And I'm addressing the question
DEFENCE: Yes.
JUDGE: to him through you.
DEFENCE: Yes, Judge.
10 JUDGE:the
Was he ever called in during proceedings of the Board of Enquiry and that whatever somebody else had to say about him that he might not have liked? Was he given the opportunity to
cross-examine on
those witnesses?
15 ACCUSED: Negative, Judge, and that is the basis of
my grievance that has reached even the office of the — (unclear) It's one of the basis anyway. What did happen though is, during the preliminary stages of that particular Board of Enquiry, '1= there was a Board of
20 Enquiry after all or is it just hearsay, I was
the first
person to raise my hand and showed in,:erest
to the Inspector General by the name of Brigadier General Mashwala that I had material evidence to give to his Board of Enquiry, which related to a white instructor, whom I. have
25 caught red-handed instigating a white officer under instruction, and I said as much in front of the •directing staff, as well as the officer under instruction, 80 or 90 of them in all, and he promised that he was going to give me a hearing, which he didn't.
30 And I believe that is why I was
victimised by . a White commandant of the college because ...
had the guts, so to put it, to speak out against an
officer, which had nothing. to . do with my speaking with his
colour, it had everything to do with a wrong behaviour of
35 an officer, the rank of a lieutenant colonel. And I was
prepared, and I told the inspector general I'm prepared to
give him that statement and that was denied me, and then I'm charged today and references made to that Board that it involves me, but I've seen nothing of it.
JUDGE: Okay. Can we stop there? Go on to the
5 next point?
DEFENCE: Yes, let's continue.
ACCUSED: As pleases the court
JUDGE: If ... unless you want to say something
further about the present point?
10 ACCUSED: Nothing more, Judge, on that particular
one.
JUDGE: Yes.
ACCUSED: Thank you, Judge, nothing on that
particular one.
15 JUDGE: Ja.
ACCUSED: This will be number 31, "Copy of a letter
or a statement written by the Chief of the South African
Army, or written by any of his generals and written to the
S A Army College et cetera to the effect that a Board of
20 Enquiry was conducted whilst still investigation pre-related issues at the time of 6 February 2001 to investigate ... Judge, you will pardon me, I'm quoting here that is why the grammar is getting lost, but to investigate a related incident Where Lieutenant Colonel Phiri was
25 involved." This is just a quotation from an affidavit again that gives the impression, and is intended to give the court the impression that there was this Board of
Enquiry. Colonel Phiri was involved in the Board of
Enquiry • and that is why we're ... (unclear . and all
-30 those stories.
So, what I would request is just that
statement or a letter that the Chief of the Army wrote, or arty 'of his subordinates that they wrote to the Army College that they would like to investigate Phiri, anything to
35 I'm in the dark, Judge, I just want to know what is
happening, all things are thrown at me of which I know
2062,03/P.hiti(it)
nothing about and I think it was my fundamental right if indeed we want to be a professional army, it was my right to have these documents made, according as well,
to the
MDC.
5 Judge, with your permission I'll move to
the next one, which is 32, this again has to do with
telephone numbers. Okay, "Telephone or home, cell,
official and private printouts. That is dialled and
received numbers for the GOC Army Training Formation for 10 the period of 1 February to 31 March 2001." Judge, may strike this one out? I'm going to request for number 32.
JUDGE: Right.
ACCUSED: Judge, for the sole ...
JUDGE: Can we draw a line through it? Fine.
15 You withdraw that an application on that point?
ACCUSED: Yes. Number 32 is out for the reason that it's taken care of by another- request orior to that. The following one now will be our number 32, but reading as 33 here, "South African Army College ...
20 JUDGE: Okay, keep it as 33.
ACCUSED: 33? "South African Army College
commandant's sworn affidavit with a list of all telephone
numbers, home, cell of the JCSD branch, Officers under
instruction, as was requested from the officers under
25 instruction and duly granted to the college at the period of the course." Judge, it will be ... I'm trying with this particular list of numbers, and at my own expense, to see the communication that is supposed, according to the debrief that was made collectively by the officers. under
30 instruction and signed by the chairperson, the allegation that there was this ... call it a "Oabal".that-WaS existing on the college premises during this -COUrse, which was aimed, according to the allegations, want—to-repeat "allegations" made by the chairperson of the course and
35 other students, excluding myself to the effect that the
white instructors of the college had instituted an
give him that statement and that was denied me, and then I'm charged today and references made to that Board that it involves me, but I've seen nothing of it.
JUDGE: Okay. Can we stop there? Go on to the
5 next point?
DEFENCE: Yes, let's continue.
ACCUSED: As pleases the court
JUDGE: If ... unless you want to say something
further about the present point?
10 ACCUSED: Nothing more, Judge, on that particular
one.
JUDGE: Yes.
ACCUSED: Thank you, Judge, nothing on that
particular one.
15 JUDGE: Ja.
ACCUSED: This will be number 31, "Copy of a letter
or a statement written by the Chief of the South African
Army, or written by any of his generals and written to the
S A Army College et cetera to the effect -hat a Board of
20 Enquiry was conducted whilst still investigation cre-related issues at the time of 6 February 2001 to investigate ... Judge, you will pardon me, 7'm quoting here that is why the grammar is getting lost, but to investigate a related incident where Lieutenant Colonel Phiri was
25 involved." This is just a quotation from an affidavit again that gives the impression, and is intended to give the court the impression that there was this Board of Enquiry. Colonel Phiri was involved in the Board of
Enquiry and that- •is why- we're • . (unclear) and all
30 those stories.
So, what I would request is just
statement or a letter that the Chief of the Army wrote,
of his subordinates that they wrote to the Army College
that they would like to investigate Phiri, anything to
35 I'm in the dark, Judge, I just want to know what is
happening, all things are thrown at me of which I know
2062-0/PM1-4v0
nothing about and I think it was my fundamental right if
indeed we want to be a professional army, it was my right
to have these documents made, according as well, to the
MDC.
5 Judge, with your permission I'll move to
the next one, which is 32, this again has to do with
telephone numbers. Okay, "Telephone or home, cell,
official and private printouts. That is dialled and
received numbers for the GOC Army Training Formation for 10 the period of 1 February to 31 March 2001." Judge, may I
strike this one out? I'm going to request for number 32.
JUDGE: Right.
ACCUSED: Judge, for the sole ...
JUDGE: Can we draw a line through it? Fine.
15 You withdraw that ... an application on that point?
ACCUSED: Yes. Number 32 is out for the reason
that it's taken care of by another request prior to that. The following one now will be our number 32, but reading as 33 here, "South African Army College ..
20 JUDGE: Okay, keep it as 33.
ACCUSED: 33? "South African Army College
commandant's sworn affidavit with a list of all telephone
numbers, home, cell of the JCSD branch, Officers under
instruction, as was requested from the officers under
25 instruction and duly granted to the college at the period of the course." Judge, it will be ... I'm trying with this particular list of numbers, and at my own expense, to see the communication that is supposed, according to the debrief that was made collectively by the officers- under
30 instruction and signed by the chairperson, the- allegation that there was this ' ' Call it a "cabal" that was existing. on the college premises during this course, which was aimed, ' according to the allegations, and I want to repeat "allegations" made. by the chairperson of the course and
35 other students, excluding myself to the effect that the white instructors. of the college had instituted an
152 underground organisation parallel to the course committee that was meant to safeguard white interests on the course.
It will be important, Judge, if. I can get these numbers and, like I said through my own expenses with
5 the permission of whoever, the Attorney General to make application for printouts of this to see if there was this hotline that was created along racial lines, because then ---
it will help this court to see what kind a of situation
from which I'm being charged for being so outspoken.
10 Judge, I want to state this very clearly, I've never gone out to hurt people ofbut
a colour different to myself,
I've never flinched again to point out wrongdoings that are done by other people of another colour just because they are another colour. And that is why I find myself in this
15 situation because of my fearlessness as an
officer for
speaking my mind.
And in this particular case I'm not trying to have a witch-hunt. I'm just trying to get something that went wrong, right.
Judge, with the permission I will go to
20 the next one. That is number 34. It's the Army Inspector General's sworn affidavit with a list of all telephone numbers, the home, cell, official and private, and office numbers of army inspector general's personal self and the persons of his personnel. That is Colonels White and
25 Magolake as of the period 1 February to 31 Earch 2001. The telephone printouts for Inspector General, Colonels White and Magolake, these two colonels are actually sub-inspectors, they work with the general in question.
"Dialled and received numbers for the
30 period mentioned in the paragraph above." It is my
contention, Judge, that this particular Board of Enquiry, for the mere reason that it is not made public to the most important person supposedly, myself, it's because "it''s probably fraudulent. It's probably people who are talking
35 behind the backs to see how they can cover the scandal that was taking place on that issue, over apparent sex issues
and race issues. They were trying to cover it up and
that's why the inspector general materialised there and at
the end of about two weeks well paid time there by the
taxpayers money he has got nothing to produce! But I must
5 be tried on the basis of that Board of Enquiry!
These telephone printouts will help the court, particularly myself, to see the skeletons, which I'm sure will be found somewhere, unless I'm given, of course, those statements of the Board of Enquiry to free me of my
10 worries. But until I have those statements I will have also to request for these home telephone numbers to see what hotline existed during the particular period when people were supposed to be participating in a legal process according to the MDC, namely a Board of Encuiry.
15 JUDGE: Okay. Can I just stop you there?
ACCUSED: Yes, Judge.
JUDGE: Just playing devil's advocate for a
moment and through your defence counsel, of course,
might be phone calls, lots of them that have nothing :Oeredo
20 with your case if you ask for a telephone crintout. Isn't
that so?
ACCUSED: Judge ...
JUDGE: So it's not such an easy ratter.
ACCUSED: I must actually thank you ...
25 JUDGE: Mm.
ACCUSED: ... because you've helped 7e in a point I
was going to forget.
JUDGE: Mm.
ACCUSED: •I .was sitting in the office of-one-of the
30 inspectors during, or towards the tail end of the
investigation, trying to plead with him the:. I should also participate. I pleaded all the way, and during that process the particular inspettOr.by'the name of Colonel Mukalake actually phoned Major Matley who was the course
35 chairman. By that time I was still employed at Defence Headquarters.
154 JUDGE: Okay. Maybe your defence counsel should decide whether you should say this or
as it might
influence the court one or another.
DEFENCE: Yes, it ...
5 JUDGE: That we rather leave it there, or what?
DEFENCE: Yes, leave it at that, Colonel Phiri, the
fact that now it's considered that the documents is properly recorded.
ACCUSED:
Thank you. As it pleases the court.
10 will go to the next request, which is number 35. I'm
quoting here, "The matters of Word format, file copy of affidavit of witness 2. I'm going to strike, Judge,
35 one more because it is an electronic document number decided on a similar document requested that I think I will
15 equally do well during the court process to show what loopholes I think were created, or the coaching that I suspect took place here.
The last one is number 36, the copies of the seven incident reports on Lieutenant Colonel Phiri's
20 file with regard to work not being up to standard. This is a statement again quoted verbatim from an affidavit of a witness in the PI process. I am of the view, Judge, that it's going to serve the respect of this court, which is so
V V
well respected, including by myself and by the larger
25 defence force community. It will serve the image of the court well to have these documents so that officers who lied, deliberately lying can have, for lack of a better description, in Afrikaans, "Boontjie kry sy loontjie", they can• get what they-deserve unlike to allow people who lie.
30 under oath to perpetuate it further. And this be taken as
....... -
line somebody says, "Colonel Phiri was wrongfciuM
and then 10 years
......... .. . .
truth what they say in affidavits,
tried." It won't serve anybody. I thank you, Judge, for
the opportunity you gave me, but I want to believe perhaps 35 my defence counsel would want to lead me towards certain clarifications. But on my side I would really thank the
2062413/Phir4v0
court for giving me this opportunity. I'm eternally
grateful.
JUDGE: Right. Anything else from your witness,
Counsel, that you want him to say?
5 DEFENCE: Er ...
JUDGE: Or give evidence about?
DEFENCE: Okay. Colonel, could you just help us
here on this Board of Enquiry, is it that the IG's investigation supposedly to be a Board of Enquiry, or was 10 there any other Board of Enquiry?
ACCUSED: There were a number of investigations
that took place during that period. There was this one
that involved the Inspector General, which is referred to
by a state witness as a Board of Enquiry that he says
15 involved myself. I have a big problem, I don't know about
it. There was also another investigation that was done much later, prior to my being charged that was done by the college, and I participated. Interestingly the PI has nothing about that particular one, but I'm not querying
20 that, but it did take place and it was also boycotted by some other members. That was the second investigation that took place. That would be all, as far as I can recall. DEFENCE: Okay, there's no further evidence
(unclear) ..
25 JUDGE: No ... okay.
DEFENCE: Yes.
JUDGE: Prosecution Counsel, any
cross-
examination?
PROSECUTOR: As it pleases the • court, thank •you,
30 Judge.
JUDGE: Just hang on a moment, let me make a 'not'e
here. You can start.
PROSECUTOR: Thank you, Judge. The prosecution- will
also just request the same as my learned colleague, when
35 addressing this application that he said he will make an address after the examination by his witness that that will
156
be also conveyed to the prosecutor to address the court on the application.
JUDGE: Of course, that is normal procedure.
PROSECUTOR: Thank you, Judge.
JUDGE: But do you have any cTuestions
to the witness? PROSECUTOR: I'm going to go forward with the cross-examination, Judge.
CROSS-EXAMINATION:
10 PROSECUTOR: Colonel, are you aware of the charges
against you?
ACCUSED: I'm crystal clear of the charges, Madam
Prosecutor.
PROSECUTOR: So you're clear about the charges against
15 you, as you are charged for today?
ACCUSED: Positive.
PROSECUTOR: Okay. Colonel, do you agree with me that
these charges are in resulted because of discussions or
arguments, which occurred on a one-on-one basis in an 20 office in an isolated situation?
ACCUSED: I disagree, Madam Prosecutor.
PROSECUTOR: Why, Colonel?
ACCUSED: All the charges that I'm facing it was
not ... (unclear) .... situation. There was a third party, 25 and for some of them there's even 80 par:ties, that is the other officers under instruction.
JUDGE: Okay. Sorry, can I just come in' here,
I'm just a bit careful that we might be going into the
merits of this case, you know outside of what is allowed in
30 regard to the defence trying to make out a case that they should be put in possession of certain documents to enable them to fully cross-examine.
PROSECUTOR: As it pleases the court '
JUDGE: But ... ja.
35 PROSECUTOR: The state has noted.
• r62-03/Phiri(vt)
JUDGE: Ja. I take it you are yourself careful
in not exceeding certain bounds?
PROSECUTOR: That's correct, Judge. - Colonel,
furthermore, and I won't take this point further, these 5 charges that have been put against you are in regards to
allegations documents. that there
15 PROSECUTOR:
That is why I need those documents just to show is some basis or for the charges.
But, Colonel, do you agree with me that
it's on averred, alleged statements or words made by yourself?
ACCUSED: It's an allegation, Madam Prosecutor,
that is based on documents, that's why I would acree with
20 you with. It's not made out of the blue. We've made use
of documents, which I don't have.
PROSECUTOR: Colonel, do you agree w'th me that the
... if we can say the discrepancy that you put forward of the document regarding the Board of Enquiry is totally 25 irrelevant to the charges that are in front of the court?
ACCUSED: Do you have the number there? Let me
read it and be with you because I'm lost at this moment. PROSECUTOR: It's a document regarding the
Board of
Enquiry that you are requesting! Colonel-.
30 ACCUSED: I want for the Board of Enquiry all the
statements as was my right to read
. . everything
that everybody ... (unclear) ... in the Board of Enquiry. Is that what you're talking abOut?
PROSECUTOR: That's correct, Colonel.
35 ACCUSED: What's your question, Madam Prosecutor?
2062-03iPhiri(r.)
PROSECUTOR: My question is, Colonel, do you agree
with me that your questions regarding your appearance at
the Board of Enquiry and your unhappiness about that is
totally irrelevant to what these charges are against you
5 today in court?
ACCUSED: I didn't appear before any Board of
Enquiry.
PROSECUTOR: And that was your concern regarding that,
is that correct?
10 ACCUSED: My concern is that that Board of Enquiry'
is made us of by in the affidavits that are coming that are in this court in the PI, is being quoted when I'm in the dark about it. My point is, the same witnesses who are being used by the state now in these charges are the same
15 witnesses who most probably by ... (unclear) in that Board of Enquiry, which ... from which 7 was illegally excluded. It would be important for this court to see if
.. (unclear) ... discrepancies there will be any between what they said in that Board of -Enquiry and what they are
20 saying to this court today.
PROSECUTOR: Colonel, if you use those documents you
stated to "statements made by the state witnesses that were
in your possession of the PI," so these statements are
your possession. And do you agree with me at the trial
25 when you plead not guilty you will be able to cross-examine these people on these statements? ACCUSED:the
Madam Prosecutor, that is a drop in
ocean. The allusion mentioned by these state witnesses
they make ... they- allude •... they implicate bigger
30 processes of which ... and they are ... for lack of a better word, they are bastardising what actually happened if they are touching on the mount ... now what they have given dUring the PI 'is a drop in the ocean, and it's not going to help my case to prove my innocence, which T
35 believe I'm going to prove by means of being forwarded the bigger picture, which they are wrongfully painting.
PROSECUTOR: Colonel, and then you're making very
defamatory allegations here in your testimony under oath today by stating that some, which you would not call by name, assaulted you.
5 ACCUSED: Yes, I've actually written a grievance
JUDGE: Okay. Can we rather leave that for the
case proper?
PROSECUTOR: Furthermore, Colonel, could you state .••
10 that's why I'm asking you if you have clarification with the charges against you, but according to me in the charge in front of me you are not being charged for being absent from a place of parade.
ACCUSED: What would you read, Ma'am, as being the
15 charge four?
PROSECUTOR: The charges in front of you, if T can
just refresh your mind, leaving a place without good and sufficient cause. That's on three of the charges, and the other one is "not reporting at a place of duty".
20 ACCUSED: Point of clarification, when did you
draft those charges?
PROSECUTOR: Colonel, I don't think it's the place for
you to ask questions.
ACCUSED: You keep on chopping me, Madam
25 Prosecutor, your charges.
Remember, in April you had another charge. November, for the first time you gave an official charge .
PROSECUTOR: Colonel, that's not ...
ACCUSED:- new •
... in November.- • Now you've got a 30 thing in the last 24 hours.
JUDGE: Okay. Sorry, can I just ...
ACCUSED: When am I going to know how to defend
myself now?
JUDGE: try and bring some calmness and
35 sanity here.
ACCUSED: What ...
JUDGE: Defence Counsel, do you have the charge
of 16 January 2002?
DEFENCE:
JUDGE: 2003, sorry.
5 DEFENCE: I'm not sure ...
JUDGE: And if so, has that been shown to your
client and discussed with him?
ACCUSED: Judge, may I ask a question?
JUDGE: Mm.
10 ACCUSED: When am I going to prepare for defending.
myself if the charges are chopped and changed three times in a space of about years? When am i going to get witnesses if at the liking of the state, they're going to sleep and decide now we're going to draft this one?
15 JUDGE: Colonel Phiri, this court will give you
ample time, and I don't know what happened before and I
don't know whether this charge sheet differs from previous charge sheet ...
ACCUSED: Oh yes, this is news, what she's telling
20 me.
JUDGE: Okay. And now the question to your
defence counsel is, does your defence counsel have this charge sheet dated 16 January 2003? By the way, the court has it and understands the law is entitled to have this at
military
courts.
25 this stage. It has always been like that in
DEFENCE: Yes. I haven't consulted with
you, see that this court might be prejudiced side that
JUDGE: There's no problem from your
30 DEFENCE: Yes.
JUDGE: by the judge knowing what the charges
are?
DEFENCE: Yes, we haven't consulted on this charge,
it came it was faxed to me recently.
35 JUDGE: Oh!
DEFENCE: Yes.
JUDGE:
on that? DEFENCE: Colonel Phiri
5 JUDGE:
DEFENCE:
So you haven't consulted with your client
Consulted. No, I haven't consulted with
on this charge sheet.
Okay.
Some of it came recently and I was hoping
that today we would just be sorting out assessors
then we would prepare for ... JUDGE: Well, actually we have got a bit further,
10 which I think would satisfy many people.
DEFENCE: Yes. Thanks, Judge.
JUDGE: Ja. Prosecution Counsel, you realise
that your cross-examination should be directed at . . I
suppose from your side, trying to establish whether some
15 documents are really relevant and necessary for the accused to have in his possession at this stage? Okay. Do you wish to carry on?
PROSECUTOR: Colonel, as the accused hasn't seen the
charge sheet that was faxed through to the defence counsel 20 perhaps, after consultation the accused will assess the necessity of rollcall books for those charges.
JUDGE: Mm.
PROSECUTOR: That's then the only question. Thank
you, Judge.
25 JUDGE: Okay.
(Recording machine was switched off)
JUDGE: You said you wanted to ask a question?
ACCUSED: Judge, it's also a complaint that I would
like .register officially.
30 JUDGE: Ja?
ACCUSED: I think the state is trying to dodge its
responsibility here. The state has got pre-knowledge of the documents I need for the past year now through the access to Information Act, which, like 4 good soldier an
35 order I followed through until it was rejected and the order was given that the court must arant me those
documents, but the state is now trying to run away from that responsibility, which will prove the lies that have been put forward by the state witnesses against .me because of victimisation by changing the charge after a year it has
5 been running. I think it is unfair but I will take it up in discussion with my defence counsel. Thank you.
JUDGE: Ja. As the court has it, right up to you
being asked to plead the prosecutor can apply for other
charges to be brought against you or charges to be altered
10 or charges to be deleted. Of course, the court will have to take into consideration that you might need time again to consult with your defence counsel and obtain witnesses et cetera .
ACCUSED: Thank you, Judge.
15 JUDGE: And that's how it works.
ACCUSED: Thank you.
JUDGE: Okay. Any re-examination?
DEFENCE: I have no re-examination. Thank you.
JUDGE: The court will adjourn until 13:30. is
20 now and carry on with defence counsel
13:05 we will th=n
and prosecution counsel addressing the court. Right. You
can stand back.
(Court adjourns)
(Court re-opens)
25 JUDGE: The court resumes at 13:45. The
defence counsel will now address the court in regard to the application. You can carry on please, CounseL.
DEFENCE: As the court pleases.
30 DEFENCE'S ADDRESS ON APPLICATION
DEFENCE: Judge, be very brief. We are. s.a.V.i.n.g_
for the defence that we require these documents for the
exercise of Colonel Phiri's rights to a fair trial in terms
of section 25 of• the Constitution. They will assist in
35 that regard..
2O./-:2-03,Thiri(vt)
The authorities are two in this regard, which I have it's Constitutional Court in Shabctlala and Others v Attorney General of the Transvaal and Another 1995 (7) SALR- 1 on the constitutional court. The other one is S v il/fakete 1997 (1)
5 SALR 291(b) it's asking for an order that the documents be provided for that purpose.
JUDGE: Right.
DEFENCE: Thank you.
JUDGE: Thank you. Address by prosecution
10 counsel?
PROSECUTOR: Thank you, Judge.
PROSECUTION OPPOSES APPLICATION
PROSECUTOR: I believe, as also indicated by the
15 court, the MDSMA itself does not provide for this
application. Although the MDSMA also indicates that,
"Reference will he then made to either a Criminal Procedure
Act or Criminal Law in such regard." In this regard the
prosecution would like to refer then to section F,-17 of the
20 Criminal Procedure Act where further particulars are requested from the defence and whereby the manner in which a ... for further particulars is dealt with, a recuest for further particulars is d=lt with in terms rF the Criminal Procedure Act.
25 JUDGE: Are you using this as an analogy?
PROSECUTOR: Just to assist the court ...
JUDGE: Request for further particulars, yes, how
it deals with such an application?
PROSECUTOR: That's correct, Colonel.
30 JUDGE: Okay.
PROSECUTOR: Just to assist the.court in that regard.
And it's the respectful submission that it is indicated
there that the ... or the court, rather, must consider such
a request for certain particulars or such documents the
35 court must distinguish or determine it within the relation
to the preliminary investigation and determine, and the
2062-03/0
court is also allowed then to have a look at the preliminary investigation to judge and to decide, and to confirm whether such application for further particulars, further particulars in this regard then documents is
5 necessary for the accused to be able to plead on the charges that put against the accused.
Furthermore, .
JUDGE: Sorry, you were referring to section what
of the Crimin...
10 PROSECUTOR: 87, Colonel.
JUDGE: 87?
PROSECUTOR: Of the Criminal Procedure Act.
JUDGE: Ja?
PROSECUTOR: Furthermore, the prosecution is also of
15 the submission that these documents are pertaining to collateral issues, that it's not with regard and relevant to the issues that the accused charged for today. Furthermore, some of these documents, if the documents in itself ... the document itself is going to be relied upon
20 and cross-examined on the document itself the person will have to come and testify in this regard. The7efore the person himself will have to come to hand in this document, or either testify with regards to this document where it will then be required for this person to have that document
25 present who's going to be a witness.
JUDGE: That is quite so.
PROSECUTOR: Yes.
JUDGE: Mm.
PROSECUTOR: .So in that regard the document will then
30 have to be available to either the defence cr prosecution
and the court in general. Therefore the prosecution is
.......
of the submission then in applying section 87 as well
the relevant objectiOn by the prosecution that these documents are not necessary for the defence to proceed with
35 their case. As it pleases the court.
JUDGE: Defence Counsel, reply if you wish.
DEFENCE: Yes, Sir.
REPLY BY DEFENCE
DEFENCE: The reply will be short that we are
5 replying we are relying on the Constitution, the provisions of the constitution to a fair trial, which is the supreme law of the country, so it overrides the Act that she is referring to. As the court pleases.
(Recording machine was switched off)
10 JUDGE: Right. Off record the court consulted
with prosecution and defence and also spoke to the assessors about a possible date for postponement, and it was mutually decided on 14 March, again in "A" Court,
08:30
for 09:00, this same court.
And the case of Lieutenant
15 Colonel Phiri is therefore postponed until that date for the court's decision re the application by the defence. In the meantime the court will have the two ta'oes ... will try to have the two tapes transcribed so that we will have a full record of what was said and what was testified, and of
20 course the court will also ao into the law pert,=ining the application that was brought to the court, and obtain such advice as it can.
And that is then the decision of
this
court. Case adjourned -until 14 March 2003.
25 PROSECUTOR:
30 As it pleases the court.
(Case adjourned until 14 March 2003)
(End of tape 7)
(Transcription commences on tape 8)
(Court re-opens)
COURT CASE OF LIEUTENANT COLONEL GOODMAN MANYANYA PHIRI COMMENCES ON 14 MARCH 2003
JUDGE: The case of Lieutenant Colonel Phiri
proceeds on 14 March .2003. The time now is 09:25. The
35 senior assessor did not report this morning to take her place next to me. The other assessor, the lieutenant
colonel did report. The court considered whether the court should wait for the full colonel to report, but has come to the conclusion that these proceedings can proceed at this stage, in view of section 20(5) of the MDSMA, Act 16 of
5 1999, which reads, "A military assessor shall only commence his or her functions at a trial after, (a) the accused's plea has been record, and (b) that assessor has taken an oath or made an affirmation in the manner and form prescribed in the rule of the code in open court before the
10 presiding judge."
The point is that the assessors have already been sworn in, but it seems prematurely. They have been present at the previous sitting of this court but as would seem from the MDSMA it was not necessary for them to
15 be here and that they should only be here after the accused has been sworn in. In any event they only
functions only commence after the plea, and the court their
the opinion that the accused has not been prejudiced by
their presence in this court at this stage. In a certain
20 sense it might be said that it does not ... their presence here is not proscribed, in other words, t'n= Act does not say that they should not be here, but the point is
that
they do not take part in the
proceedings of the court
before the plea.
75
JUDGE: FINDING ON APPLICATION FOR DOCUMENTATION
So the court is proceeding at this stage
to deal with the application by the defence at our last sitting. • The court has written out a document, which- I.•
30 call Annexure "A" and I've given it a heading, which reads, "Court's Ruling on Application by Defence COUnsel for Accused to be furnished with certain documents before the charge- sheet is read", and I start, 'At the -previous sitting of this court on 31 January 2003 Defence Counsel
35 applied on behalf of the accused, 31 January 2003 Defence
Counsel applied on behalf of the accused, Lieutenant
Colonel Phiri, for his client to be given 34 documents listed in Exhibit "E" to enable the defence to prepare their case."
"This is in addition to the preliminary
5 investigation, which is already in the accused's possession and which forms part of Exhibit "A". Defence Counsel called Lieutenant Colonel Phiri to the witness box to give evidence in support of the application and thereafter defence counsel and prosecution counsel addressed the
10 court. The defence based their application on the general: provision in terms of section 32(1) of the Republic of South Africa Constitution Act 1996 in terms of which everyone has the right of access to any information held by the state that is required for the exercise or protection
15 of any rights. Such rights include the right to defend oneself to the fullest extent in a criminal trial such as the present case.
Section 32(2) of the RSA Constitution Act provides that "National legislation must be enacted to give
20 effect to this right." Such National le;Tislation was thereafter enacted and is referred to as the "Protection of access to Information Act 2 of 2000," or the AIA for short. Certain sections of the AIA provide for exceptions or exemptions to the general right of a citizen to have access:
25 to information held by the state, which he might otherwise need for the exercise or protection of his rights. One such a provision is section 7 of the AIA, which states as follows: "The Act does not apply to a record of a public body if (a) that record. is .requested for the .purpose of
30 criminal or civil proceedings, (b) If so recuested after the commencement of such criminal' or civil proceedings as the case may be."
The present case, being a criminal case, falls within the ambit of the above quoted exceptions and
35 therefore section 7 must be applied in repect of the defence's application. As it was stated howe-:er, on page
2062-413/Phiri(•0
538 of the Billoghts handbook (Fourth Edition), by de Waal, Curry and Erasmus, "Because of the section 7 exemption the Act will also have no effect on the rules relating to discovery of the police docket and the interviewing of state
5 witnesses laid down in Shabalala v The Attorney General of the Transvaal 1996(1) SALR 725 (Constitutional Court.) The Shabalala case is fully discussed in chapter 15 of Constitutional and Criminal Procedure by Staedtkr. In a military court where a preliminary investigation has been held (as happened in Lieutenant
10 Colonel Phiri's case), the PI takes the place of a police docket and in terms of Rule 17 (1) (c) of MDSMA the accused must be a given a copy of the PI not later than two days before the commencement of the trial."
This happened some time ago, as seems to
15 be evident from Exhibit "A" which includes the PI, and which was handed in by the defence in s7_1cport of their application for disclosure. Having regard to all the above considerations this court is satisfied that the defence is already in possession of the prescribed documents referred
20 to in Rule 107 MDSMA. In the words of section 35(3) (b)
the 1996 Constitution, Lieutenant Colonel Phiri would appear to have had "adequate time and facilities to prepare a defence." This seems to be more than evident from the various exhibits that were submitted to the court in
25 support of the defence's application for disclosure of documents.
In the Namibian case of S v /Vassar 1995(1) SALR 212(nm), which dealt with the principle of "Equality of Arms" as one of the principles of a fair trial, the
30 court held that-. the states obligation to disclose documents is confined to the provision of facilities that
are "adequate". The adequacy of the offered facilities
.........
fall to be determined by the trial court and is not
dictated by the accused. In this regard it was held by D P
35 Mohammed in the Shabalala case that, "factors to be taken ir17---0
2062-0/PMHOTO
account when a court decides that access is not justified for the purposes of a fair trial are (a) the simplicity of the case with reference to the law, the facts, or both.
And then in Lieutenant Colonel Phiri's
5 case the charges are inter alia charges of, and I stand corrected, section 17 crimen injuria, section 14 (b) , section 14(b), section 14(b), section 19(2), section 17, and those are the seven charges. And apart from the charge of crimen injuria the other charges, in terms of the are routinely
10 dealt with by a military court, and are not 'of a complex nature, (b) the degree of information already in possession of an accused is also taken into .consideration. Even in serious cases heard in the High Court the amount of information disclosed to an accused through the indictment,
15 the summary of substantial facts and further particulars furnished on reouest could obviate any need for the disclosure of statements.
The general principle as stated above is that there must bean "equality of arms" between the
20 prosecution and the defences , and on the face c= i and bearing in mind that the defence may call witnesses and subpoena them ... (Latin) ... the defence cannot be said to be at a disadvantage in this trial for lack of not
possessing some heavy artillery! Okay? And I've put an
25 exclamation mark behind that.
Can I just refer to these exhibits? On
the contrary merely comparing the PI to be used by the
prosecution as the basis of their case to Exhibits "A-E" as
the basis of the defence's case it would seem that the
30 prosecution might be "outgunned". Okay? The court has
therefore come to the conclusion that the application P4'
the defence cannot and does not succeed. The ratiodicendendi is
based on section 7 of the AIA and the ruling of this court
is•that,the defence's application is DISMISSED. and. that the
35 accused will be required to plead to the charges at the appropriate stage.
•2062-03110 •
I then proceed with another aspect that has been occupying my mind, and I call this document that I have written, Annexure "B", and I have given it a heading, which is "Decision on whether the senior military judge in
5 Lieutenant Colonel Phiri's case is obliged to recuse himself after having perused the documents in support of the accused's application for disclosure." In the interest of giving the accused the fair trial to which he is entitled I have considered whether I should not, of my own
10 accord, recuse myself from this trial after I had perused Annexures "A-E" submitted by the defence in support of their application for disclosUre.
I was initially of the opinion that it would be preferable that I should not even look at those
15 documents but I have come to the conclusion that I cannot delegate my responsibility to decide on the merits of the application to anyone else, even if such person should also be a senior military judge. It is my responsibility to apply my mind to each aspect of the abplfcaton and that
20 certainly includes Annexures ... or Exhibits "A-E". It is
important to note that Rule 17(1)(a) provides that the local representative of the Adjutant General shall, as soon as possible after the notice of enrolment has been finalised, but not later than two days before the trial is
25 due to commence, provide the deciding _edge with the original of the Notice of Enrolment, the charge sheet and the record of the preliminary investigation held in connection with the case.
The rule does not state whether the
30 presiding judge is allowed to peruse the PI, but in several
Appellate division cases it was held that, "It affords no
ground for objection to a judge that he has the preparatorY
examination record. See in this 'regard .Gardner &Lansdowne , SA
CriminalLawandProcedure, Volume 2, page 398. The cases quoted
35 there are, R v Essa, 1922 (AD) 241 . R v Afrikaner 1;32 (AD) 86, I? v
Blom 1939 AD at 200 and R v Alkhize 1953 (2) SALP 324 (AD) . In
171 his book Constitutional Criminal Procedure, Page 243, Nico Staedtler refers to the Canadian case of RvO'Connor (1995) 103CCC (3d) 92 (SCC), which is, "Instructive and not inconsistent with the general principles of South African Law."
5 Two points are made in regard to the
process of obtaining documentary evidence from third parties. First, applying the rules pertaining to the granting of a subpoena duca talcum(?) an accused must approach the trial court to obtain a court order by convincing the
10 court that (a) there are reasonable grounds to believe that a specified document is in the possession of a third party and (b) that it is "likely to be relevant" for the preparation of the defence. Second, on the order being granted, the evidence is provided to the court, that is to
15 the judge, and is examined by the presiding officer to determine whether, and to what extent it should be disclosed to an accused. So a judge even has those powers to actually decide whether an accused should be given certain documents, according to this case.
20 On the same page of Staedtler's book it is
stated that documents in possession of a r---'octant witness
"are thus produced only during the trial rath,,,r than .before
trial, in preparation of a (-1Pfn,-e."A to be
point
emphasised here is that if a judge has to decide on what
25 documents can be made available. to the defence he can certainly also peruse documents submitted by the
defence
without having to recuse himself.
And here want to add
the submission of documents by the defence to be perused by
a presiding judge might surely be aeen aa tacit consent to
30 that judge to apply his mind to those documents and to peruse them.
Taking all the above into consideration I am satisfied that there is no valid reason for me to recuse myself from the case. I will continue. to do my utmost to
35 ensure that Lieutenant. Colonel Phiri receives a fair trial,
and that is what I wanted to say today. Colonel Simelane, do you need time to take instructions?
DEFENCE: Yes, Judge, the ... (unclear). . just
for the copies of the rulings that you've been dealing with 5 ... (unclear) ...
JUDGE: For what they are worth I can have photo-
stats made thereof.
DEFENCE: Yes, we prefer ... (unclear) ...
10 would have liked them to be typed.
DEFENCE: Yes, for the purpose of instructions if
we can have a copy of the handwritten one.
JUDGE: Okay. Will it be possible to indicate to
this court within the next 1-1 hour what your position is?
15 DEFENCE: Well, I can't . . (unclear) ... Judge,
but let's see ...
JUDGE: No. But I'm just giving that as a-target
time, let's say.
DEFENCE: Yes, we' 11 try and do our best to go
20 through this document as well:
JUDGE: Okay. But ... yes. Okay, I'll do so.
DEFENCE: Thank vou very much.
JUDGE: Anything that the prosecutor wants to say
at this stage?
25 PROSECUTOR: None, thank you, Judge.
(Recording machine was switched off)
JUDGE: Somebody put off the air-conditioning
please. The court re-opens at 10:35 on today, 14 March
2003. Colonel Mabusela, the senior assessor has arrived
30 and she's sitting next to me. Also next to me is
Lieutenant ColOnel Masiane. The court would just like to
hear from defence whether there's any objections to th,,,se assessors being present at the moment?
DEFENCE: Judge, they are not there's no
35 objection to the sitting ... (unclear) ...
2062-03Tiliri(v0
173
JUDGE: No objection? Does the defence have any
objections to the court dealing with the application
previously with the assessors not being present? As the
court sees it, it was in connection with a legal point,
5 which is to be decided by the court on its own and also read with section 20(5) MDSMA where it says, "A military assessor shall only commence his or her functions at trial (a) after the accused's plea has been recorded." before then the assessors have nothing to do with the
10 proceedings in the court. Any objection to that happening previously?
DEFENCE: .. (unclear) history, Judge.
JUDGE: Yes, but do you have any objection at
this stage that you want to put on record of that happening 15 just now?
DEFENCE: (No reply).
JUDGE: T can't .S'c that there can be any
objection.
DEFENCE.: (No reply).
20 JUDGE: Obje tion?
DEFENCE: Er
JUDGE : Maybe I shouli.n't press y— on that.
DEFENCF..: No,. it'c,
JUDGE: I don't expect an answer at this stage.
25 DEFENCE: Yes.
JUDGE: Okay.
DEFENCT-7: But it was instructions on the
which might bear on this coming application that if (unclear) since they were not facing when the jc3'
30 read in reasons.
JUDGE: It might have been bette rhein? Yes.
at t objectively, yes. Okay. So, okay, we can leave that 35 point. Is there anything that the defence wants ro sav at
this stage?
2C62-03/Phirit)
DEFENCE: Okay, the instruction here from Colonel
Phiri is that why doesn't court read this ruling for the benefit of the assessors, because they were not there. JUDGE: The court cannot repeat that here in open
5 court, but okay, T will do so if there is no problem .
that it's actually at the request of the defence.
DEFENCE: ... (unclear) ...
JUDGE: And I'll do it again.
DEFENCE: Okay, thanks.
10 JUDGE: Okay. For the benefit of the assessors,
Annexure "A" in front of me "Court's Ruline on Application by defence counsel for accused to be furnished with certain documents before the charge sheet is read. At the previous sitting of this court on 31 January 2003 defence counsel
15 applied on behalf of the accused, Lieutenant Colonel Phiri,
for his client to be Given 34 documents Hn E-xhibit
"E" to enable the defence to prepare their case. This is
in addition to the preliminary investication, which is
already in the accus=d's possession, and which forms part
20 of Exhibit
Defence Counsel called Lieutenant fl,-^n,n1 PtOri to the witness =box to give evidence ,n slipbor.o the application and thereafter defence counsel and pr,-,secution counsel addressed the court. The defence based •th=ir
25 application on the general provision in terms of section 32(1) of the Republic of South Africa Constitution Act 1996 in terms of which everyone has the right of access to any information held by the state that is reouired for the exercise or protection of any rights. • Such rights include
30 the right to defend
oneself to the fullest extent in a
criminal trial such as the present case.
Section 32(2) of the RSA Constitution Act provides that "National. legislation must be enacted to dive effect to this right." Such National ledislation was
35 thereafter enacted and is referred to as the "Protection of
access to Information Act 2 of 2000," or the =IA for short.
Certain sections of the PIA provide for exceptions exemptions to the general right of a citizen to have access to information held by the state, which he might otherwise need for the exercise or protection of his rights. One
5 such a provision is section 7 of the AIA, which states as follows: "The Act does not apply to a record of a public body if (a) that record is requested for the purpose of criminal or civil orocePding=, or (b) If so requested after the commencement of such criminal or civil proceedings as
10 the case may be."
The present case, being a criminal case, falls within the ambit of the above quoted exceptions and therefore section 7 must be applied in respect of the
defence's application. As it was stated however, on Page
15 538 of the Bill of Rights handbook (Fourth Edit:Lan) de Waal.
Curry and Erasmus. "Because of the section exemption the
will also h,,,v==, no effect the rules r_elating to clscovery
of the police docket and the interviewing of state
witnesses laid down in Shabakila v The Attorney General of the Trans•aal
20 1996 ( ) 77c,, Court e Shobalctio ca s e is fully discussed in chapter 15 of Consionct/ and Criminal Procedure by 8N/edit/ET. in a military court where a preliminary investigation has been held (as haopened in Lieutenant Colonel Phiri's case), the PI takes the place of a police
7,n,71 in termsof R1,1= 17 (1) of the '::in.;MA
accused must be a ,-'v-Pn a copy of the PT no: later than
-
days before the commencement of the trial."
This happened some ti_-._ as seems
be evident from Exhibit which includP, the PT, and
30 which was handed in by the defence in sucoort of their, application-for.disclosure. Having regard to all the above':
considerations this court is satisfied that the defence is
already in to in Rule 35 the 1996
possession of the prescribed documents referred 107 MDSMA. • In words of section 35(3) (b)
Constitution, Lieutenant Colonel Ph_-_ would
appear to have had "adequate time and facilities to prepare a defence." This seems to be more than evident from the various exhibits that were submitted to ,......, th= court in support of the defence's application for disclosure of
5 documents.
In the Namibian case of S v Vcisscn' 1995(1) SALR 212(nm), which dealt with the principle of "Ecuality of Arms" as one of the principles of a fair trial, the court held that the state's obligation to disclose
10 documents is confined to the provision of facilities that are "adequate". The adequacy of the offered facilities fall to be determined by the trial court and is not dictated by the accused. In this regard it was held by DP Mohammed in the Shabalala case that, "factors to oaken into
15 account when a court decides that access r--.Dt justified
for the purposes of a fair trial are (a) the EL of
the case with r=f=r=no= to the law, the facts, or oflt-n.
in Lieutenant Colonel Phir's case the charges are interalia charges of contravening Sc. __on and
cc rt. (b) the degree r-7 nfcrmaton alreaa2 , possessic-
an accused is also r-ken into consider--ti= Even in serious cases heard in the High .Court- the amount of information disclosed to an'aCcused through the indictment,
25 the summary of substantial facts and further T-2,=,r'- culars furnished on request could obviate any need for the disclosure of statements.
The general principle as stated above is
that there rust be an "equality of arm,,,' between the 30 prosecution and the defence, and on the ,face of it, and
.bearing in, mind that the defence may call wit-n=sses and
subpoena them ... (Latin) . the defence cannot be said to
be at a disadvantage in this trial for a
y artillery. On the Lack of not
possessing some heav
35 contrary-Imerely.
comparing the PI to be used by the prosecution as the .basis
of their case to Exhibits "R-E" as the oasis Of the
representative of the adjutant general shall as soon as possible after the notice of enrolment been finalised but not later than two days before the trial is due to commence provide the presiding judge with the original of the Notice of Enrolment, the charge sheet and the record of the preliminary investigation held in connection with the case. The rule does not state whether the presidins judge is allowed to peruse the PI but in several 7=-bellate Division cases it was held that, "it affords no ground for objection
10 to a judge that he has read the preparatory examination record, see Gardner & Lansdowne S A Criminal Law and Procedure Volume 2, page 398.
The cases quoted there are RvEsca,1922.(AD 241. R v •=1fi-ikaner 1932 (AD) 86 R v Blom 1939 AD at 200 and R v
15 Xfichioe 1953(2) SALP. 324 (AD) . Tn his book Con.s.titutonai Criminal
Procedure, Page 243, :Arco Siacc.::ler refers Canadian case
e
of R v O'Connor c1995) 103:C0 ( 3d 92 (525 ch is,
"Instructve and not inconsis tent with the
principles of South Afrr-en Law." TWD points are Tafe
rrom L.:, the pr=cess ePteihH c Poo- -Tien
thi_ei part e=.
Firs,, appL - the fUTEIs
the granting subpoena checues taimm(?) an accused must
approach the trial court to obtain a court order convinciL the court that ,r4r
to beli=e that a specified docilment is in the —ossession
of a third party and (b) that it is "likely to be relevant"
for the creparation of the defence. Secono, on the order
being granted, the evidence is flrndl,flp :n= cfl=t- and is
30 examined by the presiding officer to _determine whether, and to what extent it should be disclosed to the accused.
On the same page of Stacdfle's it is stated that documents in possession of a reluctant witness are thus produced only during e- trial rather than before
35 trial i n preparation of a defence. A pniht to be
20b2-0/P.-Iir01)
179 emphasised here is that if a judge has to decide on what documents can be made available to the defence he can certainly also peruse documents submitted by the defence without having to recuse himself. And here, if I remember
5 correctly, I made the additional point that by doing so the
defence had actually given myself tacit consent peruse
these documents because otherwise I couldnot have acolied
my mind and made a proper ruling on the application.
Taking all the above into consideration
10 I'm satisfied that there is no valid reason for me to
recuse myself from the case. I will continue to do my
utmost to ensure that Lieutenant Colonel Pniri receives
fair trial in this case, And that is what I have to say
and I've signed this further document on 2 Iarch 2003. And
15 that is what I read out previously this morning.
What doethe defence intend to oc?
DEFENCE: Judge, the defence intends tc move an
application for the judge's recusal in thismatter and that
for the purpose of this aoclication will Colonel
Thiri to take the stand and give evidence under- oath that regard.
You wat the assessors tt c:esent?
DEFENCE:Yes. We have no objection to the
presence of assessors. We think it be =o the benefit
-)s of this case
JUDGE: J=.
DEFENCE: as they will sit up t the Ent', of
this trial.
JUDGE: Okay—
30 DEFENCE:. That
JUDGE: bo you want to call' cient to the
witness box?
DEFENCE:' • AS the court pleases. Colonel, could you'
please take the stand.
3- Phir , yes, for the record state
your force number.
2062-03/Pri("M
APPLICATION FOR RECUSAL OF JUDGE
WITNESS NUMBER 1 : 98007693PE : LIEUTENANT COLONEL GOODMAN MANYANYA PHIRI (Hereinafter referred to as "ACCUSED") GIVES EVIDENCE UNDER OATH
5 JUDGE: You can commence, Defence Counsel.
DEFENCE: As the court pleases.
JUDGE: Ja, just take off the microphone there.
Hold it near to you.
EXAMINATION IN CHIEF:
10 DEFENCE: Colonel Phiri, we've nr,• reached the
stage where, in terms of your instructions, you want to move an application that the court recuses itself.
ACCUSED: Yes, Defence Counsel. (unclear)
Defence Counsel.
1D DEFENCE: I would be pleased if you woul(-1 k.ndlv
giveyour reasons as to why the judge, Ic;'nc- a nOiltzary judge, must recuse himself.
ACCUSED: As it pleases the court, : would like to
have the senior military dge, with alloe resect, to
-20 refuse himseLf in preparation for a n==',7
judge to oversee the actual trial of the case the
followino reasons, the main Of which a'zsessme OE
the performance of the senior military judge since he cook over from his predecessor. The assessment is such that the judge is not applying his mind in tnese Previous
applications chat I've made, without fear or favour. nave observed one work.ings and doings of the previous
of the senior military judde in the previous appearance in this court, so if my memory serves-me• well that was on 31
30 January, and it came to my attention that there too much, I mean too much supervision on the workings of the judge.
And this supervision tattle in the shape of
the Director cf Military Judges who can be named here as 35 Brigadier General Mvburgh, and I've reason believe as
was
well that there also too much supervision on the
236.2-03/Phiri(vt)
181
workings and decisions that were taken by the senior military judge on that particular day, also which emanated from the local representative of Adjutant General. I am raising this as an issue because this case has attracted so
5 much attention and has been so much for the ... may I call it the establishment of the SANDF that . . which I mus: out on record here for the court, they even resorted to denigrating my name in the media. And I will also -=,7ate for the record here that the adjutant general was part of
10 this whole exercise, which was wrongful in my view, and I've also put in a redress of wrong to :he Chief of the SANDF to that effect and he did respond to it thankfully.
But my point here is if immediate subordinates of the adjutant general come to court and give
15 each and every step that the senior military judge must take if applications are making I'm no: surprised that today the finding on my application documents is negative. That is my first point, Judge.
My second point for a rec est for rousal
Of the judge is also contingent, or it t:
first ocint. listened with a lot
avidness and
interest to the reason for the refusal
and I've discovered that nothing substantial comes what the MDC says about the role of the jul-ige on the
of documents. I hear a lot of comment in :elation to hat the Access to Information Act says, but I must put it for the record here that insofar as that is concerned, and which was reached with the assistance of the court, T
through the whole process with the Access to Information
30 Act and one Doctor Pli" G flendriks, if I've got the name ri,j ..-
made a ruling on behalf of the SANDF or the DOD's.
to Information Act directorate that the court is the one to
make a decision based on the MDC.
I don't hear this in the reasons for the 35 court rejecting my plea. I think this is based on the too
much supervision I've referred to. • Generals of this army,
U€ 2 -03:1) i ri (■ t)
particularly General ... (unclear) and General Smit would
like to see me being found guilty and I have proof of this
by his (unclear) ... of my name and accessing sub judice
information to the media. That was my second reason,
5 Judge.
My third reason to ask for your recusal is as simple as this, you mentioned by the way that you will not, according to your views and you quoted many cases, be asked to recuse yourself because tacitly agreed
10 to give Exhibits "A" and "E" which were supporting my request for access for information. True, it was a tacit agreement on my part, but it's an agreement that you should read ... have privy on the information based on the very recalcitrance, for lack of a better word, of the court,
15 especially the judge in this case to accec: the principle of me having access to information that alluded to, printed -in state witnssP.s.
And I want to say here the predecessor of the current senior military judge in the Person of Cfl7on,=l
20 Luiis didn't ask to have Exhibits
parting. shot when he left the court, said, the prosecutor must provir-IF¬ tho documents. If today 1--h= senior military judges had privy to the case it's because the senior military judge, because of his lack of independence,
25 because of the too much supervision allowed himself that - should co to the expense of giving the exhibits. I think one must go back in the records and w='11 discover that whether it was on record or not, but it was said in this court by the •predecessor of the current senior military
30 judge that I should have those documents.
I am saying then, as a last word, the
statutes of the military courts of the SAND are plain and
simple. 'It's provided for in the MDC that I should haVe
documents per judgement of the senior military judge, not
35 the judgement of his or her supervisors and in this case
the predecessor like I said Colonel LuUs said that I should
2062-03/Phiri0.1)-
183
have the documents. I think the current senior military
judge is not acting out of independence. I close my
reasons for the request for the recusal, Judge. Thank you. JUDGE: Anything further from your witness,
5 Colonel Simelane?
DEFENCE: Judge, those are the reasons. We stand
by those reasons.
JUDGE:
DEFENCE: Yes.
10 JUDGE: You didn't want him to add possibly
something else? You yourself you're satisfied with the
evidence given?
DEFENCE: I'm satisfied ... (unclear)
JUDGE: Okay. Right. As this is a n.atter
15 between myself and the accused ...
DEFENCE: No ... can I just say this?
Yes.
DEFENCE.: Judge, I was expecting that there would
be an opportunity for you to ...
?(-.) JUDGE : Yes, I' m trying to think, this w,-)uLd
the appropriate procedure to follow ...
DPc7..NC;T: Because I will ...
JUDGE: to afford the !--,-,se-uion the
opportunity to possibly cross-examine if she likes, but -); ... yes.
DEFENCRI: Yes. She will also wan: to make some
legal arguments.
JUDGE: Okay. Are there any questions that- the
prosecutor might have wanted to ask?. •
30 PROSECUTOR: None, thank you, Judge.
JUDGE: Right. And then . .ja, the next stage
would be for legal argument, and not even for myself to let'S say put my point of view here.
DEFENCE: Yes.
JUDGE: That will then be . yes, for you :hen
to address the court please.
2062-c)3:phirio.1) •
DEFENCE: As the court ...
JUDGE: Sorry, Colonel, you can return to your
seat.
ACCUSED: Thank you, Judge.
5 JUDGE: I might just say that my silence at this
stage on the issue does not mean, and should not be taken that, I as the presiding officer in this court, do agree with what the accused has said in his evidence. I dispute that, with all respect due to him.
10 DEFENCE: Er ...
JUDGE: Okay?
DEFENCE: Yes, the court is aware at it cannot
descend to the arena ...
JUDGE:
No, T can't.
DEFENCE.
... of
JUDGE I mean T'm in a difficult cesition here.
DEFENCE:
... of int...
JUDGE: I can't be prosecutor,
a:;=. and jury all
-)0 at the same time.
nannotl_terr:,-;ate the
(unclear)
JUDGE:
No. I just wanted to pmt this on record
that I, with respect, do not agree. Okay? And I de-;y,
deny any command influence of supervision ercerc
'' m an "independent oul", if mav put it in invert=d commas
cz
that. T would even have donned a gown today just to like
3
my real independence, okav, contrary to =l1 rules :: regulations about dress'. But you carry on with your
30 addressingthe court.
DEFENCE: As the court pleases.
ADDRESS BY DEFENCE ON APPLICATION FOR RECUSAL
DEFENCE:
Judge, the law is •trite oh this issue of 35 recusal. The law is trite and the constititio,a1 Courts
has also pronounced on this issue of recusal. The court
2962-02j'hiri(v )
185 will be aware in the recorded cases of the SARVU case that Louis Luyt
(Defence seems not to be speaking into the microphone
making it difficult to hear what he's saying)
5
to have the court recuse itself and
this matter's been dealt with. Judge, we're dealing with
the reasonableness of bias that,Judge, the accused needs to establish the reasonableness of bias in his mind that he will not .
10 JUDGE:
Do you want to possibly say the
possibility of bias being perceived?
DEFENCE: •.. (unclear) Yes, he perceives
JUDGE: Justice must be seento be done?
DEFENCE: Yes.
15 JUDGE: It must not only be done.
DEFENCE Justice must be do
JUDGE: Trite law.
DEFPNCE: Justice must be seen to te done . the
grounds upon which a reasonable person could see than the 7)0 accused intends of his perceived reasonable man.
JUDGE:
Of his oossible fairness the tria_
(unclear) . sustain in this case. He ___ see this kind
of benefit.
75 JUDGE:
DEFENCE:
well in regard to a fair trial. Now, the 'acts must speak
right as
for themselves . I've al ready indicated that i t Hs not for
the court to descend and argue- -as- -to the correctness or 30 otherwise- those facts presented by accused as
relating to the court.
JUDGE: It's an objective test that must be
applied.
DEFENCE: Yes. The court should not descend,.
because the very point of descending ... (unclear) .,. the case.
2062-03,Phiri(v0
186
JUDGE: That's right.
DEFENCE: Yes. That ...
JUDGE: I might add that this court, myself then,
in person I'm sensitive to all those considerations.
5 DEFENCE: Yes. .. (unclear) the court is
indeed sensitivebecause it is my submission . you know would say would one want to proceed and hear a matter when a witness has an accused has taken the stand as a witness and testified as to the oerceived bias that would
10 the court want to take that kind of courage that the court would like to try a person who has in a full convictions and has even taken oath and opened himself to
examination and that state has failed, declined to cross-examine in which it could be presumed taken his grievance 15 in the failure of the state to cross-examine Colonel Phiri
that his evidence is basically unchallenged. And is not
for the court to challenge this kind of evidence. vfln k
T was in a di"icult nositjon.
rightly said, I couldn't have cer-en-i-d into the a''-ehe because T'm no a party to this. And the prosecutor was
25 the same difficult position because how can she -reap_
interfere? How does she know what went on in the mind
the court and between the courtand whoever.
DEFENCE: No, Judge, I'm coming to the incidenc
mentioned by Colonel Phiri; These are not in the minds of
30 anybody. The coming of General Nlyburgh and coming into
this court and sitting at the back there is not in the mino of anybody, it's the sameprosecutor that was here and she
saW'GeneralVybUrgh. JUDGE: Okay.
2762-03/Phiri∎AO•
187
DEFENCE:The and a judgement was asked.
matter was stood down in order for General Myburgh to go into the chambers and discuss with the judge.
JUDGE: Okay. Can I just come in here, because I
5 want to have this put on record. I asked the advice of
General Myburgh and because this was something new which I had not dealt with before, a situation like this. Rnd as time went on and between then and now I've made a study of the law, and what I read out just now in AhnPxur=s "R" and
10 "B" is my understanding of the law. And I might add that contrary to what one would normally would expect after having perused the Exhibits "R-E"far
in my mind I have a
better understandingthe
of the case at this stage, ramifications, the . an appreciation, possibly even a
15 sympathy for the defence's case at this stage. I'm not biased, and I want to put this on record, I'm not otased against the accused.
DEFENCE: Judge, that
JUDGE: And I personally have had
70 similar experiences in my own career as I gather that the accused has.
DEFENCE: the fact
JUDGE: So what T want to put on r,7=cord is that
understand the case now better than I would have understood
25 if I only had read through the charge sheet, because as
know the charge sheet merely puts, as it were, the
prosecution's side of the case. Okay, but you can carry
on.
DEFENCE: Yes, come to that later in argument,
30 JUDGE: Mm.
DEFENCE: In relation to the authori ies you,
mentioned.
JUDGE: DEFENCE:
35 country, we
where you put
2062-03Thiri(v0
Mm.
Especially in that the procedure in this not being a continental procedure of Europe
188
JUDGE: Or Canada.
DEFENCE: . yes, this is an ... (unclear)
system and the judges have gone into these things now, but I'll deal with that later. I'm ...
5 JUDGE: Okay, but I'm saying here again, putting
it on record, the tacit consent given by the defence to this court
DEFENCE: Judge, I .
JUDGE:
.. to peruse the document.
Whether I
10 ...I don't want to interfere. Carry on.
DEFENCE: ... I'll deal with that at a later stage.
JUDGE: Mm.
DEFENCE:the I'm now on the question that
prosecutor has failed to cross-examine, the: .
15 JUDGE: Sorry, can I just say here. She cannot
be seen to side with the court, isn't that so?
DEFENCE,: The court is ...
JUDGE: From an objective point of
view.
DEFENCE: The court is now .
20 JUDGE: As thcuan she now has a 4.ob to protect
this man sitting here.
DEFENCE: Ja, the conrt nnw ornsecutor,
JUDGE: No.
DEFENCE: ... at the next stage .
25 JUDGE: No.
DEFENCE:
...the- judge, at the next stage
don't know . defence counsel, just prosecutor and judge.
JUDGE: We are both saying this 'ith a smile,
Colonel Simelane. There you are laughing as well.
30 no carry on. Thank you for that we can have this lighter
moment.
DEFENCE: Yes. Thank you, Judge.
JUDGE: BecaUSe- one it's not good and one
cannot think clearly if you are hot under the collar. 35 DEFENCE: Yes.
JUDGE: Okay.
189 DEFENCE: Indeed, Sir. Judge, the long and short of it on this question of supervision it's simply that
there-is incontrovertible evidence before this court ... JUDGE: Mm.
5 DEFENCE: .. that your superior in the person of
General Myburgh, in the course of these proceedings whilst
she was sitting here as a member of the party, decided this
the court decided it would like guidance because the court ...
10 JUDGE: On how to deal with the procedural
matter. That was what it was all about.
DEFENCE: ... in ... yes.
JUDGE: Because I have only recently come back as
a judge. I have not been in the defence force for the last
1) three years since the MDSMA had come into operation.
DEFENCE : No, the
JUDGE: Okay?
DEFENCF• ja, the court now com.bromised itself
immensely ...
20 JUDGE: Mm.
DEFENCE. orth= 717estion of its independence
combetenr-e to deal with the issues and it cwn
admission that it had to .
JUDGE: Sorry, can I just come in there?
it standard practice for any judge
DEFENCE: Not .
JUDGE: ... to consult with his colleagues?
DEFENCE: •Not in the course of proceebLings. T7_
JUDGE: Okayi-but• I'm open and
30 I don't do it behind anybody'_ back.
DEFENCE: Yes.,
JUDGE: Thankyou.
this .court is that the court compromised its independence that in the eyes ...
JUDGE:
2.062-03:Phiri(\t) •
191
your mind, your ... (unclear) . utterances could be your
own ... (unclear) ...• utterances. The whole suggestions of
supervisions and things suggest questions of • deals that
might be done and we can't really ... (unclear) . . of the 5 judge's mind.
10 question of supervision in the exercise of
judicial
sanction the compromise of the independence thatthn facts clearly support Colonel Phiri that he has a reasonable fear that, "Now my right to a fair trial would be thrown into the dustbin" and this a constitutional
15 right. This is one on supervision.
On the question of the records, judge,
this court must understand that by coming here in its
person does not change the continuity of these proceedings.
That this court in the person of Colonel Lulli.--; ordered, 20 directed the defence to pursue theprooed re of the
Informatinn Act that we sho,ild (unclear)
Phiri to cfet the documents thrtu n the Trfnmetilcnel And for that purpose we explored those avenues ,--eking to get that information. And a ruling was made, which
25 brought to this court and it is on record thet the deciswiao: of DoctorHenarikse on- behalf of the department, ,=s an officer r-1 chatae of the Information Act,
not that because he is not ... the accused thet 'r.--.)cause
to those records because the case had coe'ni:ert7 i:ntitled
should
3 0 mm be the court processthat must furnish him with the
records. In other words, the right to the bi s rights
to the records were not denied.
It was implied tbnSentthat "Fair enough, you need these records but we cannot give you them now 35 because that-
process has started, no. Those letters are on record, were submitted here are part of this record that,
192 "Okay, the court process must give you." And for that reason the parting shot that's the phrase used by Colonel Phiri in his evidence of Colonel Lutis as a sitting judge here was that the prosecution should get the documents.
5
JUDGE: Right. I had no such communications from
Colonel Lutis. I didn't know about that.
DEFENCE: Now
JUDGE: Okay.
10 DEFENCE: . Judge, the records of this court it
was incumbent upon this judge, the present judge, the sitting judge ...
JUDGE: Myself?
DEFENCE: Yes. It was incumbent to go through when
15 the judge takes over a case that has been going on for well
over a year and theres
have been sittings here, difficult. One cannot see how an incoming judge cannot
start from ▪ (unclear)
• many . (unclear)
proceedings for lack of a better word, because we haven't 20 pleaded.
JUDGE: Pre-trial orcced r,-=s?
DEFENCE: Ye=, pre-trial orocedures taking place
and going on record. If the court has not read those
records the record willa
the court will not form
proper view of what is taking place. It's not that the
court should have gone to Colonel LuOs and ...
JUDGE: Okay.
DEFENCE: say, "Colonel Luhs, what do you want
to tell The records are there.- Matters are record
30 when you come to court.
JUDGE: Sorry, can I just come in there?
DEFENCE: Mm.
JUDGE: —I—wanted ' tt ' keep my mind as open as
possible, not to be influenced by anybody, Colonel LuCis or 35 Brigadier General My-burgh or whoever. I am proud of my own
2C;62-03/PhiritA0
independence. I am an admitted attorney. I am a retired
permanent force officer. I am a part-time judge.
DEFENCE: This is conceded, Judge. We are not
talking about extraneous issues that the judge is
5 mentioning.
JUDGE: Mm.
DEFENCE: Not extraneous issues
JUDGE: I want to put this on record to try and
show how I see myself, my independence. That I'm not
10 subject to command influence.
DEFENCE: We appreciate that ... (unclear)
JUDGE: If the people don't like the way I do my
job then obviously they can say, "We don't need your services any more."
15 DEFENCE: Yes. The important .
JUDGE: P,nd by that I mean peccLe who in
charge of military judges.
DEFENCE: The important thing here, Judge, when
we talk about the record proceedings we' talking about
20 things that are part of the case. We're -t talkie 7 =lbout=
things outside. We are talking about s=ying, "LOO", T/m coming at this stage. This matter has been going on, what is the history of this case? What does the record --ay?" Because if we go to the next court, even a High Court
25 wherever the last courts of this country, they would he working on the records as to where the matter stared. They won't be interested in people who have gone, like Colonel LuUs was, for example, retired. They won't he
looking at Colonel LuUs They'll be looking and-the
30 of proceedings what Colonel LuUs said he ever said in this
case, what he was doing in court, so it was incumbent .on.. this court to say if it comes to a matter that has beer' proceedingg—fOr a while, that the court should read the record. Should familiarise himself with the record and
35 know what has taken. place, not the person of Colonel LuUs.
c'-03,Phiriot)
are we
1. didn't
No, that is she -record. the
Okay, for whati 's worth ..
It's not individual.
Okay.
It started from Colonel LuUs. It
court where thepresent court is continued
Okay. Can
(unclear) we just say =et on record
only starts once the rh.alrge
sheet has been read and the accused has been asked to plead. Do you agree with me on that?
DEFENCE: Judge, even this procedure, we are on
now, the application for this recusal, presently before this court ...
JUDGE:
It is relevant, yes.
DEFENCE: It
JUDGE:
It is relevant to the final outcome of
the case.
10 DEFENCE: Precisely.
JUDGE:
Mm.
2062-031Phiri(“)
kind of . (unclear) . of this Access to Information
Act.
JUDGE: Okay.
DEFENCE: Now ...
5 JUDGE: But that is outside of this court.
DEFENCE: In what way?
JUDGE: I can only deal with matters in the four
corners of this court.
DEFENCE: Precisely. Now, we are saying no-:: your
10 predecessor
JUDGE: Mm.
DEFENCE: . insisted .. this court now, because
we're talking in this court .
JUDGE: Okay, but .
15 DEFENCE: ... that ..
JUDGE: . is it your that I as the
new judge am bound what he previously did or said?
DEFENCE: . (unclear) Judge, we had
(unclear) . jurisdiction on ... your jurisdiction hasn't-
*20 changed. It would ... the rulings he has made are 'jou=
rulings, are the rulings of this court.
JUDGE: DEFENCE: Okay.
Yes. So the court is bound by all
rulings that have been done. -.So the point is th=refnr-e a.s
we say the parting shot was that this document must be
given, that the prosecution ... I was standing here and the
(unclear) was said, "Prosecutor, get those
documents." It meant that not less, not more that thoss
documents must be handed in. And whether it'c, what Colonel
30 LuUs or Colonel Venter said to this court, it is
she direCtions of this court and those documents should have been given. Now, there is a question therefore of bias-If •there is that change, if therefore the present court is deviating from its colleague on the same rulings of this
35 court, directions of this court and makes a finding to say,
198 "Now, I've considered this" and reads the statement read today ...
JUDGE: Okay, can I just come in here?
DEFENCE: ... then obviously this means there's a
5 clear apprehension that ...
JUDGE: Okay ..
DEFENCE: ... there won't be no (unclear) •
there's a new judge who has come, he says, no, It's coming, now I'm at the slaughter ... (unclear) ...
10 JUDGE: Can I just come in here and say that in
my own mind, and I'm not all-knowing, and :'m not the Chief Justice of this country, but in my own min:i believe that the ruling I made in this court is the correct ruling according to the law.
15 DEFENCE: Yes,
JUDGE: I stand to be corrected.
DEFENCE: Yes. Judge, judge must appreciate
we're dealing with the law ...
JUDGE: Mm.
20 DEFENCE: we don't look at sub'ective
ssues-
We donfl-
JUDGE: I'm not being
DEFENCE: Yes.
JUDGE: I'm saying that in my own hind : believe,
with due respect, that I've made the correct rulin7,. DEFENCE: Yes. Fair enoucfh, we ...
JUDGE: Ja.
DEFENCE: we are dealing with The perceived,
justice must be seen to be done, "must be 'seep.30 JUDGE: Right, I know that.
DEFENCE:. .....
From the accused to ...
JUDGE: I've always used that myself.
DEFENCE: froM--the accused ....are
now we
saying a reasonable person cannot see that justice is being
35 done if the same court ... I'm not talking of Persson ... ii
the same court on this day has diretted. .certain records be
given to the accused. The next time round, the same court makes orders, rulings that the accused must not get these records. Now
JUDGE: You mean the next man, sitting in the
5 middle here?
DEFENCE: Yes, but ...
JUDGE: Where I'm sitting?
DEFENCE: But, Judge, it is now . as I'm saying,
legally it is the same court. It
10 JUDGE: Yes, sure.
DEFENCE:
It is the same court, I'm sure you'
appreciate that.
JUDGE: Ja.
DEFENCE: That is the same court, therefore that if
15 this is so, Judge, if it is so that the court is conceding
therefore th=tgood reason has been made. T1-'s more than
good, that if- the same court makes different direction
and a different ruling on the same issue,which iS of such fundamental mportance into the accused's rights to a fair
)0 trial, and in terms of documents those vi- s re•
make for all to see who sees ...
JUDGE: Okay. flolonel Simela e, was_ 't this
court, as itwere, constituter de17010 when came to sit
here?
25 DEFENCE: No, Judge, we ...
JUDGE: Theprevious court was, as
dissolved. That a way in which this can be seen.
DEFENCE:
The ... that court was not sitting alone He elected to thi=trial -sitting, -with
30 JUDGE:
I swore them in. This assessor on my
.....
right-hand side sat with,Colonel Luus, but she was sworn in cie novo as well so for what it's worth a view can be taken that this court is sitting .. was constituted cknovo. A
new court, completely new court and - started mY- •
Proceedings in this court • de,„ novo by using this record
200 proceedings, which had not been used by my predecessor, Colonel LuUs.
DEFENCE:
Yes, but you are bound by the records, by
the decision .
JUDGE:
For what it's worth, maybe you
DEFENCE:
(unclear)
JUDGE:
• . have a valid point there, but it's for ... not for me to decide.
DEFENCE: But th
10 o-e decisions were the. decision of
thi s court.
That point has been made adequately now; Judge. I don't want to belabou- it much further
JUDGE:
Yes
DEFENCE:
The point is clear tha court
the same ourt
made certain directions and those directions were in favour 15 of the accusedbeing furnished with certain d m
ocuents,
which he reire- to be fur ished with this tri al . Fcr-
some reason a lack of oerformance
JUDGE:
Okay, can just stop vou there? If
l't's say in wiser -inclh,-7--nt or whatever decidee n o,
20 have to recuse myselft and the next time, another m,en sits
here what woOd the T-on be the Nod he have to
rDro eed from Paragraph 17 of the record proceedings
_
We've done ..
or should he start de novo from tee
No. Judge, your ruling stands. If
decide now on the overwhelming evidence that «beforeVmu , 30 You go along. and recue yourself we ,cannot, when a
judge comes and brinds an application for you for documents
because he is that person willnot be
a an Appeal Court
ol he will not be reviewing . he cannot review himself.
JUDGE.
That's right.
DEFENCE:
35 So we are stuck with this decision. Tt
not this
a matter, which we can take in the last forum, which is court so this should then indicate to
thee.judge
the importance that this argument we are puttina now, if there's a basis at the end of this case that we proceed to the next court, this argum=nt will be presented to the next court. And it will be seen that these flaws, these are
5 huge flaws in decisions, that these flaws have a bearing on
the fairness of his trial. Has a ... it cannot be undone
now. Maybe if the situation could be saved to a large
extent if the present court would then recuse itself so
that we continue further with a new person, on new matters
10 that we are left with some measure of balance that there be some fairness.
JUDGE: Okay. Can I just stop you there?
Colonel Simelane, we are now at the eighth tape in this
case, and the case has not even started yet. Is it not in
15 the interests of an accused to have his ca== disposed of as soon as possible?
DEFENCE: Judge,
JUDGE: And is this a thing tnat is really
allowed in court, that so much time in pre-orial •croceures 20 be wasted? I'm asking this objectively, a rhetorical
question.
DEFENCE. Judge, trials have taken to w=11 o
five years this court would know about that. important thing obviously is the fairness of those trials,
unless we go minutely that the law is fo'lowed into the letter, that in this constitutional cemocracv the
constitution really invests the people Wit'_ the rights, which is intended to confer, to bestow on these people that we cannot _leave the accused. .to leave his constitutional. 30 benefits.
JUDGE: Right. I'm .. ...
p
also the rO ==7.6. of those
rights, being the judge of this court.
DEFENCE: Yes, we are the institutions of this
country established by that constitution, but w= are now
35 dealing with the issue where we are cringing this application for recusal within the • framework of the
202 constitutional decisions of this court ... of this country. That the constitutional court has then said that "If a court has a reasonable perceived ... that the reasonable perceptions that he will not get a fair trial, that that
5 court must recuse himself It is not something individual
like that the court must then be subjective and say, "Look,
what I've done is ..." there is a perceived on fair that
reasonable so it may be so. You know, and if that is so
10 JUDGE: Okay, can I just stop you there?
DEFENCE: Yes, Judge.
JUDGE: On either side of me are two assessors,
which were appointed to this court as assessors of facts,
and a criminal trial revolves around facts. And as .-fr
15 I know the assessors next to me, well terms of the
rules, they mayeven me when we come to a decision on facts, for instance, is the man guilty on this charge or isn't he? So what could the accused have more fair than that? You know there's an English saying, "You can't have
20 your cake and eat it." You understand what : mean? D=FENr-Th Judge
JUDGP: You can't have eve_
yourself.
DEFENCE: Judge, the court is digressing. We are
25 dealing with an application
JUDGE: Okay., You're talking about objective
facts, just wanted to put that on record.
DEFENCE: Yes, we're talking about an. obligation
for recusal of this-court. We've•not given
30 JUDGE: What do you want ...
""•".,
DEFENCE: We're not talking about other matters.
W,e
JUDGE: What do you Want 'in a person sitting here
where I am sitting? Do you also_ want somebody who would
35 suit the accused?
DEFENCE: No, let's not confuse things
2062-L'Thir4,..0
JUDGE: DEFENCE: JUDGE: DEFENCE:
5 JUDGE:
the accused? DEFENCE: JUDGE:
I'm trying to
10 DEFENCE:
JUDGE: DEFENCE: witness stand
No, I'm asking you that.
With ...
Do you want somebody who would
We ex...
... let's say be very sympathetic towards
The accused has gone into
Because a judge should be impartial, and be impartial.
Judge,
Okay.
Judge, the accused had gone into tile and has given evidence as to the grounds upon
which the court must recuse itself. 15 JUDGE: Mm.
DEFENCE: We're not talkind about any =xtraneous
issues. The evidence is before this court, th= evidence
has not been challenged. We are saying, for the defence
that that evidence sustains.
because I can't, as it tr:=Th get into the wness box and surely couldn't cross-Pzamin= the accused.
DEFENCE: We are ...
JUDGE: So I am in a difficult position. Please
25 understand that.
DEFENCE: Please, is sin.ple we are asking
the accused is asking for your recusal. It doesn't cost a
penny when a berson's future is Put into that kind of
block-. • When he's put between the anvil and a- hammer it
30 must not be that the court wants to play a role when its role has been eliminated by the facts and the law, that
........
it's the situation, the facts, evidence has eliminated
the court The courtshould do an honourable thing whenaih
application of this nature has come before the court
35 has been sustained. We have mentioned a number of
2062-03/Phirio.0
204 irregularities. We've mentioned the flaws in decisions made and
JUDGE: What flaws in decision made?
DEFENCE: (unclear) ...
5 JUDGE: If for instance these decisions that I've
made, that I believe were correct, what about that, is that a flaw?
DEFENCE: It's . Judge, you shouldn't go
into
certain issues, which we are not dealing with. We •
10 started when I opened my mouth here to present this argument, I started with a statement that "the law is trite". Now we shouldn't . (unclear)
the law is
trite.
I went further, when I said the law is trite, I said the constitutional court had pronounc=d itself on this
15 question of recusal. I went further, Judt'=, I said the
Scufu case, it's a case, which is to be :zed. is a
milestone on this question of recusal, the LortisLuyt case JUDGE: Yes, I know.
DEFENCE: Yes. Now the case is cc:77= knowledge,
7,0 is trite and I'm saying on those recuiremenc= foe recusal
the perceived reasonableness of bias say on the
evidence, Judge, on t-h= evriPncP, i unch.ellenged. The
court says, "I was in a problem myse17', difficulties
because I could not cOme and give evidPnce atainst the ..."
25 This suggests, if some onus is being placed uoon the court that it is to rebut thi=, a person might•ha-:e to get onto the stand and give evidence, this registers that the judge must recuse himself if it comes to a point •:1-1r= he says
if the judge says "Look, the kind of evidence that
30 comes before me now, which is ad... which challenges me
would require me to put some onus on me to rebut this, and
the only thing I could do is to go to the witness stand."
the . ... .... • •
Not froM the podium, up there. Go to the witness stand and
put myself on record, then it's ,.. (unclear` 'I must
35 recuse myself, It simply says that. If it Puts. it
places an onus ...
JUDGE: Can I just refer to a recent case that we
all know of? Do you remember the case of DoctorWouterBasson? DEFENCE: Yes, I've mentioned it to my learned
friend here.
5 JUDGE: Where the prosecution asked for the
recusal of the judge?
DEFENCE: Yes.
JUDGE: And in the end he decided no, he's not
going to recuse himself.
10 DEFENCE: Yes, that's what I was saying to my
learned friend, that that decision .
JUDGE: And that case stands, as far as I know up
to this stage. Although .
DEFENCE: .. that case it's ...
15 JUDGE: there was some talk :hat the
prosecution, whoever wanted tfl to ke that de=ision on re-iiew or so?
DEFENCE: Yes, the prosecution has not done tc the
JUDGE: What 7'm rvi ; to say is
DEFENCE: ... he has placed the whole of that tfial
in jeopardy in the sense that i f that different court ,::.ere
to find that he should .indeed hav;?, reoLsed hi:rase-1f, thoss.
30 proceedings should be set aside, huge sums cf mcnies were
. ... ,,,
spent in that trial
JUDGE: The trial to start denovo?
DEFENCE: Yes, the trial will start :::/iovo. We are
facing that situation
;.5- JUDGE: Isn't that what we .are .trying to prevent
here?
DEFENCE: We are ...
JUDGE: I want to put on record, I have an open
mind here.
DEFENCE: We ...
5 JUDGE: I haven't taken any .. I haven't closed
my mind to any side of any issues.
DEFENCE: Judge, that ... the judge must be wary,
that's what I was saying, if the judge keens on saying, "I
haven't done that, I haven't done that", those are
10 subjective comments. And we are known ...
JUDGE: But I want to put it on record, Et vd-1
can hear it, you and your client.
DEFENCE: Yes. We are saying the law talks- of
reasonable perceived reasonable bias, not what the
15 subjective mind of the judge is, not the subjective mind of
the judge. That is the law. The constitutional court has laid it down that the courts will deal with the questions of bias of recusal in this nature, not the mind of the judge. So the judoe is not giving evidence to tell us its
20 mind. It's what 7'm saying that if the onus now is T:Lacel-,
that the judge would like to counter the evidence, the legislature says that the judge must recuse himself.
JUDrzF: I'm trying to look at it from
of view of the administration of justice as well.
25 DEFENCE: Yes.
JUDGE: You know, cases cannot carry on lik=
this.
DEFENCE: But, Judge .
JUDGE: Mm.
30 DEFENCE: . that thing for the adjutant general
it's just Mentioned evidence ho'w the adjutant general has impacted on this case that the accused has written redress of wrongs - 'to the Chief on the question of the adjutant general, now the court keeps on getting into the
3') role of the adjutant general talking about the
administration of justice, of the military justice
(End of tape 8)
(Transcription commences on tape 9)
JUDGE: No, I I'm talking about the
administration of justice in general, in all courts of this
5 country.
DEFENCE: This is . the MDSMA talks about the
functions of ...
JUDGE: That there should . cases should be
dealt with ...
10 DEFENCE: It .
JUDGE: ... expeditiously.
DEFENCE: Yes. Proper courts world see and know
applications of this nature, will deal with the issues. We
. in fact, coming back to the Wouter Basson case because
15 what has happened in these documents cannot be undone, even
if the judge can recuse himself now, we cannot go back
this application. We'll continue further from there on.
JUDGE: Ja.
DEFENC77.: And this is history, which will a=fect
20 this case, which will obviously affect 7his case because
the present court did not listen to the tapes, did not .
JUDGE: Wait, wait.
I a to do and chat:
job is to see to it that the accused receives a fair and I am committed to that job.
?5. DEFENCE: Ju...
JUDGE: That is what . all I :an 8ay in
matter .
DEFENCE: es, if
JUDGE: .. 'I should decide to ack up now,
30 somebody else will have to start from the be ginning.
DEFENCE: No ...
JUDGE: And then we are back to square one.
DEFENCE: No, no, no ...
JUDGE: -Now .
35 DEFENCE: That's not the case. What I'm saying is •
. . . .
.2U62-C3Thiri(vt) ..
JUDGE: Just give me an opportunity.
DEFENCE: No ...
JUDGE: I'm now, tape number 9
DEFENCE: The judge ...
5 JUDGE: Number 9, and we haven't even started
with trial.
DEFENCE: . is misdirecting himself ...
JUDGE: Why?
DEFENCE: if he says we'll start from square
10 one. We are not going to start from square one. We cannot re-open this application on these documents. • It's done with, and it's done. We are going to the next stage, so the court must not misdirect itself and say if it rebuses itself, we are going to start from square one. We are not
15 going to start from square one. This is alr-=ady the record
of this case. The new person that will dom== cannot undo this record. That's what we are saying that had this court listened to the tapes and looked for transcriptions he would get ... know that certain decisions :::=r= made all
20 along on certain issues. That he must ... a
JUDGE: . Those ... I would like to conult the law
books on this point, but those are
applications and rulings, and are they real binding?
DEFENCE: you ...
JUDGE: Are they really binding cn some
(unclear) courts, or some functionary sittind in a place behind ... (unclear)
DEFENCE: Judge, it's .
JUDGE:. Especially • if • one takes the view that
30 DEFENCE: Yes.
..... . .......
JUDGE: . that we had actually started going
nowhere with these court proceedings when : took my pace on this bench.
DEFENCE: No, (unclear) Judge, there were
35 other.applications. The records, if the record is shown of
the previous appearances the court will then see what
"206.2 t)
transpired there. The court did not wan: to give itself
that benefit of going through that record. You started ... (unclear) ... where you start. If the present ourt now, on this overwhelming evidence and circumstances, calls for
5 the constitutional the next court will start further and say, "Are we starting the trial? Are we taking pleas?" We are not going back to documents, previous applications what, what, because all those are ... if we go to a record
of this case, it's being prepared maybe f:r 10 Military Appeals after .
JUDGE: Mm.
DEFENCE: this it would .
record since 2001 or wherever started,
the Court of
the entire that is the
record that will go to them. The CMA wile look frcm the
15 onset of this case, "in1='ll see what Co-:`el Venter or Colonel LuU.:. did, whet Colonel Venter dit, what .=noth=r colonel that might come indeed did, until the conclusion
the case."
JUDGE:
20 DEFENCE:
JUDGE: DEFENCE:
This will be the trial record, Judge. Okay.
Before the CMA.
Point 7-.ken.
Yes. And this will be the same :hi:-
we go from the CMA to the High Court. The High _kart i need the entire record of the CMA, prior record (-'77a (-.-DUrt
25 of Senior Military Judge, so we are :0 tart
afresh.
JUDGE: Okay.
DEFENCE: If this was to do an honourable
thing and recuse• itself we wi11-•then continue, fix a date 30 with my learned friend who will then arrange a trial date.
And if .. and the next senior military juke comes, he
will commence the trial. He will ... these docum.ents are
history and all other things, part of the record
. ..........
JUDGE: yes.
DEFENCE: because this court has
the rulings ...
2062-03:Thiri(% t)
JUDGE: Mm.
DEFENCE: . which have impacted in the upshot of
this application for recusal.
JUDGE: Yes.
5 DEFENCE: Yes.
JUDGE: Okay.
DEFENCE: Yes.
JUDGE: Colonel, is there much more that you want
to say, or do you think you have made your point?
10 DEFENCE: Yes. I have something more to say now.
JUDGE: Yes, on?
DEFENCE: On . . Judge, I think I've made my point
on the other matters.
JUDGE: Mm.
15 DEFENCE: First .. (unclear)
JUDGE:• Okay.
DEFENCE: On these questions of the record and
supervision
JUDGE: Em.
20 DEFENCE: that has been made. Now, I'm cumin
these comments, which the 7udge made in its rUJ_ r."; The court is aware that those . the cases, which the court was reading, referring to, which Gardner d: 110M d011'ne we're talking about.
25 JUDGE: Yes. 1957?
DEFENCE: Yes, some were 1923 and things.
JUDGE: Mm.
DEFENCE.: Judge, are the cases when you sti 11
the-preparatory- examJnon-prOCedure?
30 JUDGE: What is the PI? Preliminary
Investigatioh.?
DEFENCE: .. (unclear) . We . . those cases deal
.. . ........
with the preparatory examination.
JUDGE: Mm.
35 DEFENCE: Which is the position that has been
discarded in this. country?
not the preparatory examinations. If the judge had
referred us to ... talked of cases that have to do with 15 that procedure within the military convention, it would
have been more persuasive, but that'sa point to Est
mention.
JUDGE: Okay.
DEFENCE: But, the authorities, ,udge, like 7've
said, they are trite. The questionsQi recusal T VCUld
say, the grounds are more than sufficient.
JUDGE: Mm.
E FNoR That in the wel I meant comments or the
li'oarter ECISSOn case that • we are lacing the state at riskk of
incurring more costs if this trial was to be set aside bV higher courts, and especially in the light of the ruling. This is a more serious comment, the more serious i n
the light of the ruling in refusing these Opcuments. v..nen
30 JUDGE: When the defence still has that remedy
...... .... •
when the prosecution witnesscomes here, and ~ha
prosecution witness has access to certain documentary evidence, this court can say to that prosecution witness, "You know,at the request of the defence, but you•have
35 access to that. I would like to see those documents.":
DEFENCE: There will be .
2062-03:Phid(v0
JUDGE: I would like you to bring it here and
hand it in to the court.
DEFENCE: There will be no witness, Judge, to be
frank who'll be having an IG's report, that Board of 5 Enquiry that was done at the army college.
JUDGE: But the incoming ...
DEFENCE: Ye...
JUDGE:
will ask for t t man to be
subpoenaed.
10 DEFENCE: Who ...
JUDGE: As a defence witness.
DEFENCE: Ask who to be subpoenaed: (1=nral
JUDGE: Or could even ask the court to call
witnesses, because at the end ofthe case, the court can 15 also decide to call witnesses.
DEFENCE:
Judge, the court ha= denied to make
an ord-r that these documents be furnished.On what basis would we do a thing now ... you
JUDGE: Colonel I was mak_L a fl---7
20 DEFENCE: No ...
JUDGE :
. "of equal ry or arms!'
DEFENCE : The
JUDGE:
in i inverted commas, with an
exclamation marks and I think of document=,- handed in
25 defence and the documents to be used at tics stage by the prosecution, is only a small part of th,,, of documents handed in. No equality of arms.
DEFENCE:
JUDGE: Defence is not outgunned, - Defence is
30 outgunning the prosecution by the looks of it.
DEFENCE: The ... you know, the ...
JUDGE: Okay, that was said in a lighter vein.
I'm smiling. Okay? I see you sM11ing•as Well.
DEFENCE: Yes The important thing here, Judge, is
35the law with regard to recusal in the debisions of the
2062-03,Thiri(■0
213 questionable court and the point that has been made that fairness will now elude Colonel Phiri
JUDGE: Are you saying this court cannot be fair
anymore? The man sitting here, where I'm sitting?
5 DEFENCE: Indeed. I couldn't say i7= .
JUDGE: Are you saying that with great respect?
DEFENCE: With great respect, that the evidence
suggests and indeed the evidence is incontrovertible and
that the accused was not even cross-examined on the issues
10 because they were taken as given that ... you know, it
remains on charges. Now, the point is ...
JUDGE: This court is not in cchorts with the
prosecution or anybody higher up. I'm independent.
would stress that fact, okay? I hope you accept that.
15 DEFENCE: It's a sup. anyway it's not within the
law because sublective. We ...
JUDGE: Okay, you made that point earlier.
DEFENCE: We made that point, that this
application is within grounds of reasonableness.
20 JUDGE: Nm.
DEFENCE: P=r("d reasonableness, and that is the
law as we understand it.
JUDGE: Right.
DEFENCE: Okay. I have no further submissions
25 JUDGE:Thank ynu. Let the tour= just make a
note here.
(Recording machine was switched off)
JUDGE: Counsel for the prosecutio:- do you wish
to reply?
30 PROSECUTOR: As it pleases the court, Jut:e.
. ..... • . ...
REPLY EY PROSECUTION
prosecutor because it's in no means within the knowledge the prosecutor to be challenged. Second...
JUDGE: Do you mean when you asked, "Do you have
any questions in cross-examination to the accused", when he 5 gave evidence?
PROSECUTOR: That's correct, Judge.
JUDGE: Okay.
PROSECUTOR: In the first instance the Prosecution
would like to state that in no way was it cut by the
10 defence on what grounds in terms of the MDSMA they are bringing this application for recusal of the judge. believe that this application is brought in terms of 35 and 36 of the MDSMA, which it states that, "In terms of 35(b-has, or during trial gained such knowledge concerning the
15 facts of the case to be heard by the court that his or her decision is likely to be preudiced thereby either/or bears any accused, or during the trial develops towards an_: accused such animosity as is likely to prejudice his or he= decision, either/or where the accused signet or signed as a
20 witness on the accused's election form to be disciplines-_
heard", which is not applicable in this case.
The question, as has been __so dealt wi-In by the defence, is the case c=several cr)nsttutional court cases the prosecution would like to refer to i in th.is
25 regard, for application for judicial recusal was considered
in two recent judgements in the constitutional court instance, the President of the Repub:ic of South Africa an. Others versus t=12E-'
South 4fi-ican Ruh t• Football Union and Others, 1999 4) SALR
Constitutional COUrt, ' the SARFU case, as the defence
30 referred to it and The South African Commercial Cateiing ,Allied Workers Union and Others..v Irvin & Johnson referred to as the • SACCATFU , case In this case it was quite clearly what is being considerec
to be impartiality or partiality by a judge, and I quote according of the SARFU case, paragraph 48,
215 "The question is whether a reasonable objective and informed person would, on the correct facts, reasonably apprehend that the judge has not, or will not bring
5 an impartial mind to bear on the adjudication of the case. That is a mind open to persuasion by the evidence and the submissions of counsel.
The reasonableness of the apprehension
10 must be assessed in the light of the oath'
of office taken by the judge to
administer justice withoutfear or
favour."
Which was several times reiterated by the judge that he has
15 an open mind regarding this case, and will judge this
case
without fear and favour. "And their ability to carry out that oath by reason of theirand
training
experience. It must be assumed that they
20 can disabuse their =Lnds of any
irrelevant Personal beliefs Of
predispositions. They 7s.t take into
account the fact that the; have a duty to
•sit in any case in which they are not
25 obliged to rP.,-11 themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial. And _a judicial officer should not hesitate to recuse himself or herself if there are
. ...... . . -
reasonable grounds on part of the
litigant or accused,rhat
apprehending
the judicial officer, for whatever reason Was not, or will not be
Judge, in the first instance it is clear that an objective test and a reasonable test is recuired
from the informed person, which the judge himself is. An
informed person that is adjudicating a matter that hasn't
even started yet, where an oath has been taken by the said
judge to preside over the case or judge over the case, sit
5 in the case, without fear or favour.
When it is required from a judge to be impartial it's never required from a judce to be neutral because a judge still stays human, and he can't divorce himself from his experiences or any judicial law or law
10 that he is faced with. Furthermore, in that regard, or to stand off that point, the prosecution really found _ very interesting how the defence contradicted =r-self in terms constantly, because in the first instance it is referred to as "Judgement" or "Judges" or rulings that were made by
15 Colonel LuUs, which the court has to adhere 7:o. But in the next sense the defence is making an'apoication once again for documentation in terms of the constitution and never on the grounds of a ruling that was made by a previous judge, but on application of the constitution.
20 Thirdly, I cannot understand why we have
to deal with an application of the documents as the court
already made a decision on this application, which understand as a judgement, or ruling that is final
regarding this. As the prosecution recalls -_self that the only ruling that was mad.e regarding previous sittings by
Colonel Luts was regarding the recusal of im--,1f, never
regarding documents or an application made in terms of documents, and that the prosecution had to brovide to the defence.
30 JUDGE: Was there ever such a ruling in open
court here by Colonel.LuUs? . ..
PROSECUTOR: There was no formal application in that
regard, or ruling by Colonel LuUs regarding documents that must be provided by the prosecution, to the defence. In.
your case, or your application on a ruling of a previous judge and then at the same time make a new application that ought to be then if you want to state that the previous case or ruling is still applicable to this court, must be
5 on the same ruling, or a ruling that was made in the previous court, and that was never the case, if that was a belief.
As such then, the prosecution stays with the submission that regarding the SARFU case that the
10 accused is making a perception of what the situation is and at no stage is basing his apprehension on reasonable facts. As it pleases the court.
JUDGE:
wish to reply? 15 DEFENCE: Thank you. Does the defence possibly
Yes, I would like to reply, Judge.
REPLY BY DEFENCE
DEFENCE: . Judge, the defence has never said there
was a formal application. Judge, the acolic;,tion for
20 recusal of documents for to be furnished with
documents would not have been repeated before this court because it's the same argument that what his court, terms ofthe present jlidge before us had done, cannot be repeated, so we did not have before Colonel luUs a formal application to be furnished with documents, although he had on record . . on his record we had indicated the number of applications that we were going to do, one of which was
this question of documents. It will ... the record will
ShOW that we were going to Move three appli-= ions before
30 Colonel Lu0s, one of which was the application for
documents, ....... ...
And with regard to that application
... .
thereof for documents it was preceded by of those three
applications, .by..an..application for his recusal, and then. 5 when he declined to. recuse himself then he said, in T-Jassinq •
therefore, insofar as this anticipated application, which
could not have been brought during that day, it was to be
.. it had been mentioned because of the lateness of the hour, due to the fact that that application for recusal took that long, that instead of next time around, when we
5 meet we will hear that application, he then directed the prosecution to give us those documents.
And we then laboured under the impression that in terms of those directions, in the meanwhile, before the next hearing, in the meanwhile the ... on the word
10 the court's direction, not on a formal application, but an application that was to be brought and it was very late to
be brought, that "okay, give them those documents." And had hoped that in the meanwhile we would have those documents. If we didn't have them, we would then have t-
15 move this formal. application, and when next we met, could not move this formal application before him because
So that therefore made then that
20 had to come to the new judge coming in, because wh=n Colonel was now with the opportunity that hs would have had to hear himself the application for recus:-._
for these documents, and in the light of his previous directions he would have been pressed obviously to .
25 would not have contradicted himself, he would have been pressed to . maybe to make an outcome therefore, if -;:e
had had to make a formal application, but we didn't do because when next time around the court came together Colonel. LuLis said, "I'm leaving.'
30 JUDGE: Yes, he was .
DEFENCE: Yes ..........
JUDGE: he went on pension, medically unfit.
DEFENCE: Yes. "So I can't hear this matter
further."
35 JUDGE: Mm.
DEFENCE: So there will be Colonel Venter coming,
so anything you want to do, please renew it with the judge
coming. So that's when and then we had to bring this
before the new judge. Now, this was the point of
5 clarification on that issue, because it should not be clouded now because the court has not gone into the ... if the tapes were there, the records were there, most of these things would not have been in dispute.
JUDGE: Right.
10 DEFENCE: Otherwise it's my submission that there's
no difference in the S4CCAO7U case and the SARFU case and that those are both judgements of the constitutional court and at no point did the constitutional court overrule itself. As the court pleases.
15 JUDGE: Thank you, Colonel.
DEFENCE: Mm.
JUDGE: FINDING BY THE JUDGE ON APPLICATION FOR RECUSAL
I'm referring here to E = 35 of the
20 NDSMA, it says, and I just cuote what is re'e7ant here,
"Any presiding judge who has, or during a trial gained such knowl=:ice concerning the farts of the case to be heard by the court that his decision is likely to be
25 prejudiced thereby, or :) bears
accused, or during the tril develops towards any accused such animosity as is likely to prejudice his or ^er decision, shall reCuse himself."
30 Referring to paragraph (d):
........
"Has„. or_during. trial gained such
knowledge concerning the facts of the
..... . ......
case to be heard the court that his
decision is likely. -to prejudiced
35 thereby."
2062-02,,Phiri(vn
This court can state as a fact that yes, I have read the documents submitted by the defence in support of their application, but I repeat again, this must be seen against the background that the defence had actually handed in
5 those documents and must be taken to have given tacit permission for me, and it's in fact my duty, to apply my mind to the application as a whole, which I did, and this includes perusing those documents. And one can also say that where it says, "Such knowledge concerning the facts of
10 the case" is something apart from what one can read in a
document such as a new record of a preliminary
investigation. This can be taken, these words, "Such knowledge" could be taken to mean, and that's how I understand the law, personal knowledge, not knowledge,
15 which would, if you could be called as a witness, and I have no such knowledge that I could be cal7=d as a witness in any case concerning Lieutenant Colonel Phiri.
(c) "Bears the accused, or during the
trial develops towards the accused such
animosity as is likelyhis
:Drejudice
decision."
I can categorically state that I have nothing against the accused. I see him as a
likeable
person.
I'm not prejudiced against hir71, and in all fairness and honesty I see no reason why I should deviate from my original d=ci'or„ that th=re's no reason for me to recuse myself from this case, and I'll also stand by my ruling in connection with the application by the defence to
be provided with those documents. And that's as far
30 can take It today. as I
We can stand down to arrange a suitable. date for this case to proceed, whether with myself sitting here or anybody else. I don't know what the defenCe intends to do, whether .the defence intends to take me on
35 review as a result of my decision, by which I stand. And I Say this in total honesty and with the utmost good
intentions of doing my job as I am proud of doing my job, my job, my calling as a judge of this court, okay?
Can I
switch off the tape so we can arrange a future date?
(Recording machine was switched off)
5 JUDGE: After all parties concerned consulted
their diaries, a decision has been made, and this is the court's ruling at this stage, or order, that this case be postponed until 9 and 10 June 2003 in this same court, court. That is as far as we can take it today.
10 DEFENCE: As the court pleases.
PROSECUTOR: As it pleases the court.
(Case is postponed until 9/10 June 2003)
(Court re-opens)
15 COURT CASE OF LIEUTENANT COLONEL GOODMAN MANYANYA PHIRI COMMENCES ON 9 JUNE 2003
JUDGE: The case of Lieutenant Colonel
resumes on 9 June 2003 at 10:35 ±. Present court are
the accused and his legal representative, also the
20 prosecutor and on the bench mvsPlf, Colonel 1Pnt=r and one
of the assessors, Lieutenant Colonel Mosiane. present
is Colonel Plabusela, the other assessor. A000rdng to Lieutenant Colonel Mosiane she had phoned this morning stating that she had problems with transport, taxis from Soweto. This court cannot wait for her indefinitely, the whole day and this court deems it necessary, and with further discussions off the record with oro=etution and defence counsel, that this case is being postpc Pd at this
.......
stage until tomorrow in , this samP court "A" Court at 0:30
30 for 09:00. The court manager has already been informed and
..... • .. . . •
.he will_hopefully get in touch with Colonel. .:.:abusel.a.
advise her that this case will continue tomorrow morning 10
June 2003. Prosecution and Defence Counsel, you confirm
this .is fine with .you both?
35 PROSECUTOR. Confirmation from prosecution, Judge.
DEFENCE: Confirmation from defence_
JUDGE: Thank you, Major and Colonel.
(Case is postponed until 10 June 2003)
(Court re-opens)
5 COURT CASE OF LIEUTENANT COLONEL GOODMAN MANYANYA PHIRI COMMENCES ON 10 JUNE 2003
JUDGE: The case of Lieutenant Colonel Phiri
resumes on 10 June 2003 at 11:12. The accused is present
in court, his legal representative, defence counsel,
10 prosecution counsel and myself Colonel Venter the presiding officer as well as the one assessor Lieutenant Colonel Masiane. This case cannot, at this stage, continue because of the absence of Colonel Mabusela who is the senior assessor in this case. Her present whereabouts seem to be
15 unknown. We have heard stories about her having transport
problems. We've also heard that maybe she's in Burundi.
We do not know, but the court manager will try and find out
for us. In any case we cannot proceed today and off record
prosecution counsel and defence counsel hate informed the
20 court that 24 and 25 July 2003 will be suitable dates fD.r.
further proceedings in this case Do you confirm that,
both of you?
PROSECUTOR: Judge.
?; JUD(2,E: is it tine with the defence counsel_?
DEFENCE: Confi=ed, Judge.
JUDGE: Right. Then this case is ocstponed until
24/25 July 2003 provisionally in this same court, "A" Court
but '11 see whatthe Notice of Enrolment or Court roll
30 for that day says. . .Okay, Colonel, your case is-
.remanded until 24 July 2003.
ACCUSED: Yes, Judge.
JUDGE: Stand back.
(Case is remanded until 24 July 2003)-- 35 (End of tape 9)
(END OF PROCEEDINGS.) .......
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JUDGE: Or would it be necessary for the court to ask them to be
here, these new members who are ... ja, I just want you to quickly address me on that.
DEFENCE: I would say we have no objections whether they are
5 here or not. ... (unclear) ... that the assessors that are on record ...
JUDGE: Yes.
DEFENCE: ... are the assessors that will continue with the case.
JUDGE: Okay.
DEFENCE: As to whether ... (unclear) ... is not for the defence to
10 comment on.
JUDGE: Okay.
DEFENCE: We only look at ... (unclear) ... proceed with the matter
with assessors that have been indicated by my client.
JUDGE: Yes. And the assessors on the bench now
15 DEFENCE: Yes.
JUDGE: ... sitting on ... is still acceptable to the defence counsel?
DEFENCE: Yes, Judge.
JUDGE: Okay. Then perhaps then on ... I can excuse the ... let's
call them temporary assessors, and I would like to apologise from the bench's
20 side for this ... let's call it interference with your diary, bu-. it is nice to know that should something happen and then between now and the next trial date anything can happen, we can press on your buttons and you will be able to serve on this court without possible applications for recusal. Anything from your side, Madam Prosecutor ...
25 PROSECUTOR: Nothing, Judge.
JUDGE: ... on the arrangements? Thank you. So as it stands
then the assessors will then be available for trial, Colonel LIabusela and Colonel Motseano ... Lieutenant Colonel Motseano. Just to fresh my memory, anything else that we discussed with trial date for the new judge, ...
30 PROSECUTOR: If I may ...
JUDGE: I haven't mentioned it the ... Madam Prosecutor?
PROSECUTOR: ... we discussed in chambers with ...
JUDGE: The new judge, the name of the new judge and ...
PROSECUTOR: Yes, the new name of the judge and then a possible
date, and then that will be ... (unclear) ... from the prosecution counsel and my learned colleague, the defence counsel wishes to put on record.
JUDGE: Yes, fine.
5 PROSECUTOR: As the court pleases.
JUDGE: I can just put on record that due to my unavailability
there are .. the number of senior military judges who can take this case are now
being reduced to, let's say, only a few members remaining. The person I had in
mind, I must just tell that one of the reasons why I cannot take this case as well
10 is due, ... one of the personal reasons is I am going to be acting Director, Military Judges and as far as my duties I have to appoint judges to the bench and arrange with them their availability. Now the appointment will have effect 30 January it will start then, and in the meantime I have spoken to some of the military judges just to find out who will be available for trial and what dates, and
15 the person I spoke to is a Colonel Miguel (Michael?) Venter, he's a senior military judge and he is from the Legal Satellite Office in B'oemfontein. Colonel Venter is not available until 24 February and if I can just cut my thoughts into words here, I'm thinking that ... I was thinking of going, post:_oning then the case for trial on 24 February in front of Colonel Venter as the newly appointed judge,
20 and then putting down the case, let's book the court for the-: for say three days, it might even be more, at this stage I have no idea, and then for trial date to put it down for trial so that the prosecution can call her witnesses. All of us present here know that this case has been coming for quite a long t.me now, and it's in the interests of justice both to be fair to the prosecution co_nsel as well as the
25 defence counsel that we try to then really on that day proceed with trial with the calling of prosecution witnesses. Any other possible applicat.ons that may come from the defence's side or perhaps the prosecution's side tnen to be dealt with by the newly appointed judge. Madam Prosecutor, would yo like to address me then on your ... one of your witnesses?
30 PROSECUTOR: Yes, Judge, the prosecution has one major concern at
this stage and that is that the case has been coming since r:arch 2001. Now we all know, even my learned colleague across the way from me will agree with me that as time goes on peoples' memories fade, so prosecution has definitely suffered that prejudice thus far. In addition, prosecuton is suffering the
35 prejudice in the sense that witnesses ... (unclear) ... and is yery difficult for
prosecution to bring witnesses to court when it's merely for a postponement or for another pre-trial procedure, therefore, Judge, I wish to place it on record that one of the witnesses, one of the prosecution witnesses finds himself in an African country, I'm informed that that is in Nigeria but it stands correcting upon
5 what I have been told, but in an African country and every time that the trial is to proceed he ... or ... yes, I cannot say that every time because I haven't been the prosecutor up until this date ...
JUDGE: Yes, yes. Ja, sorry. Ja, that's another ... (unclear) ... a
new prosecutor.
10 PROSECUTOR: but I am led to understand that he has been here on a
few occasions, ready to testify only to be told that he can go back.
JUDGE: Ja.
PROSECUTOR: And I'm also led to understand that he has done this at
own cost each time, ja. Even if we were to start paying his costs for him to come 15 ... for the purposes of trial every time we would possibly be executing privileged
expenses if it were for merely another postponement.
JUDGE: Mm.
PROSECUTOR: So the conclusion of this argument is that this specific
witness will not be at court on the day that we postpone to, unless defence 20 counsel can give prosecution the assurance, 100% assurance that the case will
continue on that day. As the court pleases.
JUDGE: Thank you. Can I hear you on that, Mr Defence
Counsel, please, is it possible at this stage to give such an undertaking? DEFENCE: Judge, regrettably it's not possible for defence counsel
25 to make undertakings as the continuity or otherwise of the trial at the next appearance for the obvious reasons that prosecution has amended the charge sheet, and the defence counsel speaks before this court that amended charge sheet is not before defence counsel. Counsel will need to take instructions from that and that involves a number of witnesses arising from consultation, in
30 specific instance that might be dealing with aspects of the amendment because that will have a bearing on the cross-examination, but we can proceed everything being equal on the coming days and maybe the next court may ... (unclear) ... whether we'll deal with the postponement on cross-examination or not. But we're just indicating possibilities now because we are really in ...
35 (unclear) ... I don't have the charge sheet, I have to get the instructions on the
amendments either from client and also to see which are the possible witnesses affected by that amendment, what are they going to say because as the court is aware when we have to cross-examine on the evidence given by the state witness we have ... (unclear) ... to indicate what our version will be, so I don't
5 have ... (unclear) ... version on this particular aspect from our side. So those are
matters that make it now that I can't say with ... (unclear) ... if the case when we are clear ... (unclear) ... for successive dates, it may proceed on that day and as I've indicated we may have to postpone to other dates depending on the court ... (unclear) ... to that application on the grounds we may have to advance.
10 JUDGE: Ja.
DEFENCE: Ja.
JUDGE: But at this stage can you foresee any other pre-trial
perhaps applications ... (unclear) ... can we put it down for trial, or ... DEFENCE: We ...
15 JUDGE: ... for the prosecution as ... (unclear) ... to call some of
her witnesses, even so it might not be the witness she referred to coming from Ni... from the African country, if she calls some of her ,witnesses? Ja. You understand her predicament? I ...
DEFENCE: I understand.
20 JUDGE: I just want to know ...
DEFENCE: I understand ...
JUDGE: ... in what way can the ...
DEFENCE: Yes, yes ...
JUDGE: ... defence counsel assist her ... the court.
25 DEFENCE: Yes, we want to assist the cc_irt judge, in the ...
unfortunately court is sitting in a very unfortunate situaton because of the ... (unclear) ... matter which the court ... (unclear) ... I've triei my best to brief my colleague ...
JUDGE: Yes?
30 DEFENCE: ... to bring her up to speed.
JUDGE: Ja, I know that ...
DEFENCE:. Yes, yes.
JUDGE: ... another defence has ...
DEFENCE: Yes, yes.
35 JUDGE: Ja, that's another matter ...
DEFENCE: ... (unclear) ... because she's also new.
JUDGE: Ja.
DEFENCE: You know, the things that she might have addressed the
court on were not precisely, because that witness Colonel Kleynhans was not 5 here before court ... (unclear) ...and the postponement was caused by other
reasons. If he was here at some point he was not known to us that he's here.
JUDGE: Ja.
DEFENCE: We have never dealt with the question of that particular
witness being present and not confronting whatever situation.
10 JUDGE:
DEFENCE: Ja.
So we don't know exactly, there was never a time when
this matter was ready to proceed and the witnesses were there and it did not proceed.
JUDGE: Okay.
15 DEFENCE: Now, coming to your final question, Judge, the
whether are there going to be any applications ...
JUDGE: No, I'm talking about ... ja, ja, the
DEFENCE: ... (unclear) ...
JUDGE: .. the name of the judge that I mentioned to you, I don't
20 whether ...
DEFENCE: About that, Judge, that judge be .. the indication of my
client we're prepared to get into the box and give that version is that we can't cross that bridge at the moment.
JUDGE: Ja. Ja, I understand .
25 DEFENCE: Yes. We can't cross that bridge at the moment.
JUDGE: I understand that you haven't seen the ...
DEFENCE: Yes. Yes, ... (unclear) ... the ... (unclear) ...
JUDGE: Okay. No, I don't think it be necessary.
DEFENCE: ... the court disappears, then the court is back.
30 JUDGE: Ja, ja. At the moment we've got a ... ja. I do understand
that.
DEFENCE: ... (unclear) ...
JUDGE: That you cannot exercise ybur right to ' Make an
application for recusal if you haven't seen the person on the bench yet.
JUDGE: So ...
DEFENCE: Thanks, Judge.
JUDGE: But ... ja, that is why I think it would be best to then
reserve a few dates for this trial, ... (unclear) ... hear how many witnesses are 5 involved in this matter, and whether it's going to be a lengthy trial.
DEFENCE: Yes. And while the considering tne number of dates it
may postpone to, ...
JUDGE: Uhuh?
DEFENCE: ... I've explained to my colleague prosecution counsel
10 that the previous prosecution counsel ...
JUDGE: DEFENCE: Yes?
... (unclear) ... direction of the court to assist in getting
reports. There's an important report of the investigations bearing on this trial ...
on this matter which is in the office of the Chief of the A-my, the accused has
15 tried on his own ... (unclear) ... requesting for those reports which is the Inspector General's reports on the course, this is the Army College course, junior staff course where these charges emanate from.
JUDGE: DEFENCE: Yes.
Now this report has not been furr:shed to us, it's not in
20 the dockets, we have used the Information Act ...
JUDGE: DEFENCE: Yes?
... the ... (unclear) ... information officer was that
because of the imminent trial we should rather get these dcournents through the court process, in other words prosecution counsel and the court.
25 JUDGE: Mm.
DEFENCE: This letter was produced before the -court concerning the
... (unclear) ... of Colonel Luus ... (unclear) ...decided judge .
JUDGE: Yes.
DEFENCE: ... we showed him the letter and comments arose
30 from the bench, (1) in the event we apply for an order compelling the state to
give us those documents ... (unclear) .,. not competent tomake that kidn of order.
JUDGE: Yes, that ... no, I ...
DEFENCE: Yes.
JUDGE: ... I agree with that.
35 DEFENCE: Yes. (2) we can only ask prosecution to assist.
JUDGE: Yes.
DEFENCE: And then he asked the previous prosecutor that please
assist defence counsel to get the doc... the report which is required. JUDGE: ... (unclear) ...
5 DEFENCE: The court ... (unclear) ... she came back to me and said
look, the instructions were she was to get ... (unclear) ... she's not going to assist, now we are sitting with that problem. Now,
JUDGE: Mm.
DEFENCE: ... that is what I indicated to my learned friend, the new
10 one now ... (unclear) ... the one before the court.
JUDGE: Yes,
DEFENCE: Is that ...
JUDGE: Colonel ... Captain van Schalkwyk.
DEFENCE: Captain van Stanwyk.
15 JUDGE: ja, let's get her name ...
DEFENCE: Is that ...
JUDGE: It's not captain ... (unclear) ...
DEFENCE: ... she must consider making her own decisions and not
be bound by a previous colleague.
20 JUDGE:
DEFENCE: Yes.
So she must be able to make a decision whether she's
assisting us with those reports which she did admit she can see that in the .. (unclear) ... speaks about investigations but she doesn't see the report.
JUDGE: Ja.
DEFENCE: Then I said ... (unclear) ... get this report because ...
(unclear) ... in the charges and it can assist the continuity of the trial.
JUDGE: Mm.
DEFENCE: She said she's going to try, she'll read those documents
and the report she gave is that she went as far as the senior prosecution counsel -
30 who said to her "leave this matter" and I even asked her in that in the event you get a decision . which, is. contrary. to assisting us, will you kind ask senior prosecution to write a letter ...
JUDGE: Mm.
DEFENCE: . ... to .say. prosecution is not going to assist, because it
35 might assist us at some point if we have to go to the High Court to ask for a High
Court order ...
JUDGE: Yes.
DEFENCE: ... we may produce such a letter which we have from the
information officer to say you must get it to the ... (unclear) ... and prosecution 5 counsel must give us a letter to say they are not going to assist us.
JUDGE:
DEFENCE: Yes, yes.
That is now ... (unclear) ... it ... (unclear) ...apply for legal
assistance ... (unclear) ... the High Court to get the statements we must be able
to produce this letter that we did everything, we have not been assisted so we
10 advised that orders must come from the High Court and please give us legal
assistance to pay for that legal team to assist us to get that order.
JUDGE:
DEFENCE: Okay.
Now I'm mentioning this now, Judge, because you are
already looking at dates ...
15 JUDGE: Yes.
DEFENCE: ... now the fact of the matter is as my present instruction
stands is that we will go to the plea stage ...
JUDGE: Yes?
DEFENCE: ... (unclear) ...
20 JUDGE: Uhuh?
DEFENCE: Once we have pleaded ...
JUDGE: Yes?
DEFENCE: ... we will re-open the questions of the report ...
JUDGE: Okay.
25 DEFENCE: ... because we need them.
JUDGE: Yes.
DEFENCE: And if at this stage therefore when that court will
(unclear) ... to show how its assisting us, or.let the matter stand down to be able for us to get relief from the High Court.
30 JUDGE: Okay.
DEFENCE: Yes, so I'm just indicating that now in case the court
wants to put a number of dates that after plea there may be that issue, it may come immediately after plea or it may come at the (unclear) 'but' it ... (unclear).... at the end of the close that day ...
JUDGE: Yes?
DEFENCE: ... we must indicate before the court witnesses that our
cross-examination will be hampered by the report ... (unclear) ...
JUDGE: Yes.
DEFENCE: ... it bears on the evidence if they ... (unclear) ...
5 JUDGE: ... (unclear) ...
DEFENCE: ... so that it will be on record.
JUDGE: Fine. Thank you.
DEFENCE: Thanks, Judge.
JUDGE: Just ... your ... from your side, Madam Prosecutor?
10 PROSECUTOR: Judge, if I may ... (unclear) ... to the beginning of my learned colleague's address to the court just on the point of the charge sheet, it was previously explained to this court and the amendments brought to the charge sheet are not material, there's no new evidence and therefore it is prosecution's submissions that should we then wish to continue ... (unclear) ...
15 that Colonel Simalane would have ample time to consult on the charge sheet.
JUDGE: I'm ... (unclear) ... charge sheet, okay?
PROSECUTOR: With regard to Colonel Kleynhans the person ...
JUDGE: Is that member that the ... (unclear) spoke of?
PROSECUTOR: The person who finds himself in an African country, yes,
20 Judge.
JUDGE: Okay.
PROSECUTOR: My instructions were that indeed he hadn't been in court
but that he had been on standby, all the witnesses at every time being on standby in South Africa, in other words in Pretoria, in the vicinity of the court just 25 not present here.
JUDGE: Okay.
PROSECUTOR: With regards to dates, Judge, I am very cautious of
setting down a trial date for the 24'h if my learned colleague does not know what
he wishes to do at that stage and time, effort et cetera is wasted, and I would
30 almost submit to the court that perhaps we should set a date for the 24th to deal with any possible objections and that perhaps a.week later set a date for three days, or whatever the case may be for actual trial then. It is merely a suggestion from the prosecution. Then with regard to the doCurnents that my learned colleague addressed you on, yes, I had a look through the investigation. Yes, I
35 saw that mention was made of an investigation that was held at Army College.
... you must decide on that as well. Now to help you to decide in that case let's ... (unclear) ... in writing so ... (unclear) ... we did what you wanted ... (unclear) ... Now with this response ... (unclear) ... we can't find another reason ... (unclear) ... get these documents without going to the High Court, please assist us with
5 funds for our lawyers to go to the High Court.
JUDGE: Madam Prosecutor, can I hear you on that?
PROSECUTOR: Judge, this application has been before this court, and it
has been before Doctor Hendricks also
JUDGE: Uhuh?
10 PROSECUTOR: ... and both the court and Doctor Hendricks said the
same that the Access Information Act is not the correct procedure for the defence counsel to follow.
JUDGE:
DEFENCE: No, I've got no say ...
15 JUDGE:
DEFENCE: They are not saying so, they are not saying sc. They
don't say the procedure is not ... they are dealing with the matter in front of the
Information Act ... (unclear) ... application under the Information Act which finally
it was decided by Doctor Hendricks and he wrote a letter, he didn't say ...
20 (unclear) ... he says given the imminence of the trial, there's an imminent trial ..
(unclear) ...
JUDGE: ... (unclear) ... okay, ... (unclear) ...
DEFENCE: .. the position is that ... (unclear) ... use the court for that
and this is the court process ...
25 PROSECUTOR: Judge, ..
JUDGE: Yes?
PROSECUTOR: ... that's exactly what I'm saying that ...
JUDGE: Yes?
PROSECUTOR: Doctor Hendricks and his peccie said there is a
30 pending trial with, what they interpreted, criminal proceedings ..
JUDGE: Uhuh? Yes, that's right.
PROSECUTOR: ... if I'm not mistaken.
JUDGE: ... (unclear) ...
PROSECUTOR: And on ... I don't have the documents in front of me, I'm
35 speaking from memory.
JUDGE: Yes?
PROSECUTOR: And therefore the documents, according to the Act.
cannot be given by means of the Act. Okay?
JUDGE: Okay.
5 PROSECUTOR: And then we have ...
JUDGE: Section 7 of the Access to Information Act?
PROSECUTOR: Then we have the ...
JUDGE: Ja, (unclear) ...
PROSECUTOR: ... application to court, and the court has said ...
10 JUDGE: Uhuh?
PROSECUTOR: ... we cannot force an application by means of the
Access Information Act, the court has said ...
JUDGE: What ...
PROSECUTOR: Sorry, we don't have the capacity ...
15 JUDGE: ... the judge in that case?
PROSECUTOR: It was Colonel Venter. I read the pre-trial ... (unclear) ...
JUDGE: Ja. Sorry ...
PROSECUTOR: ... and if I'm not mistaken it was Colonel Piet ... (unclear)
... Venter.
20 JUDGE: Ja. Okay.
PROSECUTOR: So I don't think the Access to Information Act is the right
avenue to follow for the defence counsel, I think perhaps what defence counsel should consider doing if they're really serious about the documents is that another letter be written to the interested parties where they explain their situation, and where they say that these documents are required. Furthermore
JUDGE: Er... yes?
PROSECUTOR: ... senior prosecution is not going to respond, or give
any such letter until a letter is requested by my learned colleague. Senior
30 prosecution counsel, or even the Director of Military Prosecutions they do not have to respond to Dr Hendricks' letter, there's no onus on him to respond, so • its not for his action or anything like that, so this is no request for him to respond and therefore if defence counsel and Colonel Phiri would request such a letter from prosecution counsel such an application should be formally so that it can be handled at the decision-making level and not with somebody in ...
DEFENCE: Yes, yes. So now ...
JUDGE: Okay, Yes?
DEFENCE: ... whatever ... all what we're asking from prosecution
counsel ...
5 JUDGE: Uhuh?
DEFENCE: ... is that from the request we have made before court
now they could indicate now, they've already addressed the court as to why .,. (unclear) ...
JUDGE: Mm.
10 DEFENCE: ... they can only write a statement to say that we
explained in court we cannot assist you for these reasons ...
JUDGE: Yes. Okay.
DEFENCE: ... and then give it to us. That letter should suffice, it
doesn't have to talk about this letter from Secretary for the Defence ... (unclear)
15 ... it's just to say from your request in court that we assist v
✓ith these documents
we cannot assist you for these reasons, and give it to us.
JUDGE: Uhuh?
DEFENCE: It answers the Secretary for Defence, Dr Hendricks that
this avenue cannot work, and if the pros... the Information Act is not the right
20 forum for us to assist us we then have to ask for assistance to go to the High Court. Now, they're able to make decisions now ... (unclear) ... all possible avenues are already covered, we are sitting.. Judge, with stacks of letters written by Colonel Phiri to Chief of the Army and to the Inspector General, we have not even had the courtesy of a response.
25 JUDGE: Ja.
DEFENCE: Acknowledgement, let us deliver, let's just post it, go to
the ... (unclear) ... Chief of Army and say "look, here is the documents" we need
documents of course ... (unclear) ... not even acknowleciced. Now ... (unclear)
...it probably (unclear) ...help us, really we've got to go to the High Court, and
• 30 vve have to plead for legal assistance from the ... (unclear) ... Defence. All what we are asking is that prosecution counsel to say your request to us in court to assist cannot be met because it's not a matter for us as we see it, then it closes
the matter ... (unclear) ... and ... (unclear) before court about prosecution
counsel, we know where to go. We go back to the Minister of Defence .., that 35 avenue is out ...
JUDGE: Ja, I do understand.
DEFENCE: ... (unclear) ... the Information Act is not the correct one
then we're going to the High Court, please assist us with legal. assistance (unclear) ... we can close ... (unclear) ...
5 JUDGE: Okay. Madam Prosecutor?
PROSECUTOR: Judge, I just wish to reiterate again, any response
(unclear) ... request would require a request on our side. As the court pleases.
JUDGE: Ja, okay.
DEFENCE: Yes, and ...
10 JUDGE: Can you assist her with such a letter?
DEFENCE: Yes, ... (unclear) ...
JUDGE: Instead of just referring to what transpired in court?
DEFENCE: ... (unclear) ... that what occurred to me now ...
JUDGE: Ja?
15 DEFENCE: ... is that this record, the matter is on record?
JUDGE: Ja?
DEFENCE: This record can help us. Now the trial is not complete,
there are costs involved, if we ask the court ... (unclear) ... record of these
proceedings which has this information now because this thing is already there,
20 all what we need to do is to get a copy of this record. If what they can do for us
is to facilitate that we get a copy of the proceedings of the day.
JUDGE:
DEFENCE: JUDGE:
25 DEFENCE: Of today?
Tien...
Ja.
Yes, then we will take ... because now all what we said
is now on record, we will take this record and take it to ... (,:nclear) ... and say this is their version on record before court so that nothing .. 'vve do not need to reply to that letter or to give a letter.
JUDGE: Or to give her a letter so that she can
30 DEFENCE: Yes, yes, ...
JUDGE: ... give you another letter ...
DEFENCE: ... we just state ... yes, we can just ...
JUDGE: Wouldn't it be less Costly if we dealt wish it ...
DEFENCE: Yes
35 JUDGE: .. by way of letter instead of having this record
transcribed ...
DEFENCE: Yes, because it
JUDGE: ... at the cost to the state?
DEFENCE: Yes, because it
5 JUDGE: I just want to ...
DEFENCE: Yes.
JUDGE: ... make that caution.
DEFENCE: Because I don't know what ...
JUDGE: What will be the less costly avenue?
10 DEFENCE: What are we supposed to say in the letter? Are we
supposed the request we made in court for the records, that's what we're looking at here, and ... (unclear) ... my learned friend.
JUDGE: Ja. ... (unclear)
PROSECUTOR: No, no, that's that you could say that you were in
15 court on ... today and that you understand that prosecution is not to assist in the obtaining of any documents, and we would like a response of the senior prosecution counsel, or Director, Military Prosecutions for that matter, and the prosecutor's approach, something ... (unclear) ...
DEFENCE: Well, we can do that as long as it doesn't appear now
20 that because we stand by your word here in court we're not dealing with the ... you are their representative and what you are saying you are supposed to be saying what your directors is saying.
JUDGE: No ...
DEFENCE: ... what the state ... now if ... (unclear) questioning
25 (unclear) ... as if I'm not taking your word, if it won't affect you know, we Will
mention that in the letter that what you are telling in court if ',../hen you read that you don't take it as going to your superiors, you know, because there are other inferences now because we ... of course we'll say as directed by you ..
PROSECUTOR: Mm.
30 DEFENCE: Okay, if it is ... (unclear) ...
JUDGE: Yes, I dOn't want to ... the request for the record of today"
it will have to be transcribed in any event ...
DEFENCE: JUDGE:
35 don't think ... Will it be transcribed?
As far as I know all the others have teen transcribed, I
14
DEFENCE: Yes.
PROSECUTOR: But not ...
JUDGE: ... why this should not ...
PROSECUTOR: ... if there's no reason for it to be transcribed now
5 imminently, immediately and therefore ...
JUDGE: Okay. Yes?
PROSECUTOR:
JUDGE: It will be more costly if there is an
PROSECUTOR: It will be costly ...
10 JUDGE: ... request for an urgent transcription, yes.
DEFENCE: Yes, I'm s... maybe then in that letter to the Director of
Prosecutions ... Military Prosecutions ...
JUDGE: I think so.
DEFENCE: ... is that we allude to the record being transcribed, if ...
15 (unclear) ... should not be put in writing for us to convey to the ... (unclear) ... they must assist us ... the state must assist us at their cost to have this done. You know, because I remember getting a letter from Director, Judicial Reviews that the record can be obtained at the end of the trial.
JUDGE: The record ... ja, the ...
20 DEFENCE: The record of proceedings.
JUDGE: Ja, for the ... ja, the ... ja. if it is necessary to cio on
appeal we not even know whether the case is going to result in a plea of .. in a
finding of guilty or whatever at this stage, so that is ... I was just thinking of
something else, the trail proceedings itself; and I stand to correct me if I'm
-)5 wrong, but the way I understood it that letter of Mr Hendricks ...
DEFENCE: Yes.
JUDGE: ... wasn't he alluding to the fact that if this case comes
on trial only during trial proceedings the defence counsel can then perhaps
request that a witness to call a witness with his documents, to subpoena ....
30 (unclear) ... statement, wasn't what he referred to perhaps?
DEFENCE:
JUDGE:
DEFENCE: JUDGE:
35 me there? I can't remember, I read a whole lot of stiff and
The ...
... I can't remember exactly the wording,can you assist
DEFENCE: The idea along those lines, Judge, can con...
JUDGE: Isn't that, ja.
DEFENCE: ... (unclear) ... made one other approach would be to try
at the time of cross-examination, this is not very feasible because ...
5 JUDGE: Uhuh?
DEFENCE: ... how do you put a question when were not sure of the
position and be able to put it to ... (unclear) ... we should have documents before we put the question. I ... (unclear) ... in my view that kind of procedure.
JUDGE: Mm, mm.
10 DEFENCE: Subpoena or whatever that those documents at that
point in time when we are due to cross-examine.
JUDGE: Mm.
DEFENCE: You know. Now at that point it would ... (unclear) ...
delay the trial because we will call for the documents and we have to ... (unclear)
15 ... that causes a time-stop. We're trying to, as I understand it, to reach a point we can proceed to finality with this trial, put in... (unclear) ... certain ... (unclear) ... finish and klaar.
JUDGE: Mm.
DEFENCE: And it doesn't help us therefore if vie know that after the
20 witness has testified the crimes injurici charges against my cl'ent (unclear)
by your witness in Nigeria that when we come to cross-examine about this the trial will have stop for us to aet that document, we have ... (unclear) documents, he'll have to come back to be cross-examined ...
JUDGE: Ja. This is, I must say an intricate matter, I'm trying to
25 assist both parties here.
DEFENCE: Mm.
JUDGE: Before I make a ruling on this, can I just hear you,
Defence Counsel, are you prepared just to write a letter to the prosecution to
request whatever you alluded to just now, the request for what transpired in
30 court so that she then perhaps can write you that letter back to say "sorry, we cannot assist" and then that enables you then to go to the Secretary for the Defence.
DEFENCE: Yes, ... (unclear) We can do-that because now ...
JUDGE: If... can I just get something here from you ...
35 PROSECUTOR: Judge, ... (unclear) ...
JUDGE: Will, if you get such a letter ...
PROSECUTOR: And I think it would be best procedure-wise if the letter
were addressed to Director, Military Prosecutions.
JUDGE: Mm.
5 DEFENCE: No problem.
JUDGE: Ja, so that he can make that decision.
DEFENCE: Okay.
JUDGE: And then get a letter then from defence counsel, so I
then ... the court will then suggest that a letter be written by the defence counsel 10 to Director, Military Prosecutions ...
DEFENCE: Mm.
JUDGE: ...with regards to the records that you've (unclear) ...
to the record of ...
DEFENCE: The report on the ...
15 JUDGE: Report?
DEFENCE: ... the Inspector General's report ...
JUDGE: Ja.
DEFENCE: ... on ... (unclear) ...
JUDGE: You will refer then to the ... you've got the copy of the
20 previous pre-trial happenings, you've got it ... I think, if I remember correctly it was also ... was it on request and I think the accused also paid for that transcription. Am I correct?
DEFENCE: Yes, Judge.
JUDGE: Not for the transcription but for a copy?
25 DEFENCE: Yes ...
JUDGE: Ja, the Director, Military Judicial Re.iews I think was
referring to as a complete at the trial ...
DEFENCE: Oh ...
JUDGE: ... after a finding, sentence, et cetera teen the accused is
30 entitled to a copy of the record of proceedings if he so reques:s at the cost of ...
I'm not quite sure what the cost is perhaps R1.00 (one 7.and) a page or something like that, but in this event there is going to be a ... is there still then going to be a request fbr the transcription of the pre-trial to ass st you in ...
DEFENCE: Yes ...
35 JUDGE: ... drawing up your letter, or will you not be ...
DEFENCE: No, no ...
JUDGE: ... it will be on tape, available on tape.
DEFENCE: Yes.
JUDGE: But ...
5 DEFENCE: Ja, ... (unclear) ... the letter from ... (unclear) ... in this
directions of the court to get the tape. ... (unclear) ...
JUDGE: So ... but will you need it on paper? Will you need the
tape on paper ...
DEFENCE: No, not necessarily.
10 JUDGE: ... extra cost to the Legsato?
DEFENCE: No, ... (unclear) ... if I can allude briefly is to say what we
are talking about in court here, ... (unclear) ... to the tape I can only make ...
even make further requests to do that. This things not possible for them to come
and explain so on grounds why is the ... (unclear) ... assist us to get the
15 transcript ...
JUDGE: Ja
DEFENCE: ... (unclear) ... proceedings.
JUDGE: Will that be possible to get a transcript of today's ...
PROSECUTOR: Judge, this is unfortunately not my decision to make .
-)C.) JUDGE: Ja, I know ...
PROSECUTOR: ... as you will know I ...
JUDGE: ... I'm jumping the gun here. Ja.
PROSECUTOR: Ja. Prosecution has on many occasions in different
trials made such an application when it's not necessarily granted.
JUDGE: Mm.
PROSECUTOR: But I would suggest that Colonel Simalane make his
application and let the relevant authorities look at it.
JUDGE: Ja,
PROSECUTOR. As the court pleases.
30 JUDGE: Okay. And then once you get the letter from the
defence counsel, or not YOU the Director ... does he for your information the• letter going to ...
PROSECUTOR: ... (unclear) ...
JUDGE: for your information as the ...
35 PROSECUTOR: Whichever way defence counsel wishes me to handle it,
it will be fine.
JUDGE: Okay. And then we await a response of Director,
Military ...
PROSECUTOR: Yes. There's just one concern that prosecution wishes
5 to place on record now and that is that it seems we're heading for another series
of postponements.
JUDGE: Mm.
PROSECUTOR: And if that were to be the case, I'm just putting it on
record ...
10 JUDGE: Ja.
PROSECUTOR: ... that prosecution should most likely bring an
application in terms of section 342(a) of the Criminal Proceci!tre Act to court ...
JUDGE: Uhuh?
PROSECUTOR: ... with regards to alit he postponements, basically that
15 prosecution's case been prejudiced by all the postponements and that we would
seek relief from ... (unclear) ... As the court pleases.
JUDGE: Okay, but not now, at a later stage?
PROSECUTOR: Not now.
JUDGE: At a lat... but you foresee that possibility?
20 PROSECUTOR: We will see how it goes.
DEFENCE: I just hope that it brings that ... (uno!ear) ... my learned
friend bringing this application after ... (unclear) ... it is our request ... (unclear) ... JUDGE: Okay, then anything else from counsels, so then the ...
you will write your letter. I really hope it will not be necessary for your client to go to the High Court for an application because by then ! don't think that time any ..one of us will still be alive and well, but ... (uncles-) ... (unclear)
perhaps ... As far as I can go, all of us can go but if there is .. (unclear) ... justice is a speedy trial that you really feel that you cannot go to trial without any documents then so be it, that is a decision fcr the defence counsel to make. And
30 in front of me I've got this ... anything else then, or can I just then go into the
formalities? Can we set a date then for 24 February?
DEFENCE: ... (unclear) ...
JUDGE: No problem from my ....(unclear) ...Okay, so I'm going to
put the case down then. Now I'm not quite really sure, the p'osecution is sug.. is 35 not then for trial, it's not then for what? How long do I put ths case down for
now on 24 ...
PROSECUTOR: Or to deal with any possible pre-trial procedures. In
other words that we bring no witnesses to court, but possibly that we could deal
with pre-trial procedures and perhaps even plea, as my learned colleague ... 5 JUDGE: Okay, so you are ...
DEFENCE: Yes.
JUDGE: ... but not for witnesses ... (unclear) ...
PROSECUTOR: But not for witnesses then just so that vie have more
certainty of the direction in which we are going.
10 JUDGE: Okay.
PROSECUTOR: Obviously prosecution ...
JUDGE: So not for trial?
PROSECUTOR: ... is loath to do this ... (unclear) ...
JUDGE: Ja, I was really thought we could go then on trial,
15 perhaps at least some of the prosecution witnesses ...
PROSECUTOR: Yes.
JUDGE: ... are available, but it ...
PROSECUTOR: Prosecution would love ...
JUDGE: Yes?
20 PROSECUTOR: ... to bring two witnesses on the trial date
JUDGE: Yes.
PROSECUTOR: And if my learned colleague sees his way clear to going
on with the trial then definitely prosecution will bring two witnesses, but not the one that is in Africa because we have no certainty that we will indeed proceed.
23 JUDGE: Okay. Can ... the two witnesses that you intend to call, if
its possible, the names of those witnesses?
PROSECUTOR: Colonel Drost and Colonel Lentsoe.
JUDGE: Kleyn and Lentsoe?
PROSECUTOR: No, Drost
30 JUDGE: Colonel Drost and Lentsoe. (unclear) Yes,
Defence Counsel?
DEFENCE: Yes, Judge, we ... it is ... (unclea-) for defence
counsel to say we can plead, .•(unclear) . you can take a plea at a later stage ... (unclear) ... we cannot consent to commit ourselves to other issues not until we have a response from the Director, Military Prosecutions or our request ...
(unclear) yes, because that will a dimension as to where we are going to ...
JUDGE: Ja.
DEFENCE: ... depending on his response.
JUDGE: Ja.
5 DEFENCE: But we (unclear) ... we ... I'm ... (unclear) ... indicate
fairly that defence counsel wanted the plea stage to be completed.
JUDGE: Okay. Ja.
DEFENCE: Yes.
JUDGE: I thought that might have ...
10 DEFENCE: Yes ... (unclear) ...
JUDGE: ... we have been happening today.
DEFENCE: Yes, things have been happening ...
JUDGE: But unfortunately ...
DEFENCE: Now, were ready, defence wants the pleas to be taken
15 and then any other issues will be dealt with by the next court.
JUDGE: Okay.
DEFENCE: After ... (unclear) ... pleas ... (unclear) ...
JUDGE: Okay.
PROSECUTOR: Sorry, Judge, if I understand correctly then on the 24th I
7n will bring my two witnesses, we will schedule for how many days? How many
days should I keep open?
JUDGE: Your views on that? I thought perhaps three days that
the judae will be available I think for the rest of that week then, the judge that I have in mind.
25 DEFENCE: Yes, yes.
JUDGE: Unless there is something else ..
DEFENCE. Yes.
JUDGE: happening on that day.
DEFENCE: Yes.
30 JUDGE: I think for the rest of the week of the 23':
...
DEFENCE: Ja, we ...
JUDGE: ... of February.
DEFENCE: VVe've really got no control on that because ... (unclear)
... we will be able to deal with other issues after pleas, pending on the response 35 to our ... (unclear) ... So we can't interfere with the prosecution, ... (unclear) ...
this ... it's seen ...
DEFENCE: And especially if it is outside.
JUDGE: ... as a it might be seen as a personal application ...
DEFENCE: Yes ... (unclear) ...
5 JUDGE: ... and not as a criminal ... (unclear) so then I don't
know.
DEFENCE: Yes, yes. Ja.
JUDGE: I'm at a loss there as to the ...
DEFENCE: Mm, ja
10 JUDGE: ... the workings ...
DEFENCE: Ja. No, it gets complicated because
JUDGE: ... in that specific department.
DEFENCE: ... it is Secretary for Defence does not decide alone, he'll
... (unclear) ... to the state they must sort of one mind because the ... (unclear) ...
15 ... (unclear) ... this arrangement out of the course of work, it's the decision of the course of work, it's the ... (unclear) ... of party's interest that ... (unclear) ... be represented and that it gets legal ... are these documents relevant for its trial, then once all ... (unclear) ...
JUDGE: Mm.
20 DEFENCE: ... that obligation ... (unclear) ...
JUDGE: But I think at this stage we cannot take the matter any
further really today, excepting to postpone this matter for pleaCing
DEFENCE: For pleading.
JUDGE: ... on 24 February. I will set the matte- down for trial, or
request that it begin for trial, let's say for three days, four da:,s, as long as the senior judge is available. If we don't use all those three or fog.:- days then so be it, but then he will know, he will make his diary available. And then for the ... I'm going to urge then the defence counsel to write that letter of request to the Director, Military Prosecutions as soon as possible with reference then to today's
30 tapes. I will re... on the tape I'm going to write today's date so that you can refer
..... to the tape of today, it will only be one tape then dated 27 January..
DEFENCE: JUDGE: That's ... That's ... (unclear) ...
If any ... if it becomes necessary then tu have this thing •
convenient for her then to obtain the tapes from her and not from the judge in Bloemfontein. The case is then postponed until the 24th for ... until the end of that week of February 24, 2004 and I will, it's a Tuesday, Wednesday ... (unclear) ... and the Friday the 27th and then we will see what happens in the
5 meantime. Thank you, Defence Counsel, Thank you, Madam Prosecutor.
DEFENCE: Thank you, Judge.
PROSECUTOR: As the court pleases.
JUDGE: Thank you, Assessors for your assistance ... (unclear)
... and to the other colonels who were called up. Thank you. I think it is safe to
10 say that I don't expect that we will be needing your services, but make a note of
the 24th if you can just be here, if anything should happen ... (unclear) be here. Thanks. Thank you, the tapes are switched off again, the time is now 11:20 ... (unclear) ...
(End of tape 1)
15 (Transcription continues on tape 2)
COURT CASE OF 98007693PE : LIEUTENANT COLONEL : GOODMAN MANYANA PHIRI RESUMES ON 24 FEBRUARY 2004
JUDGE: Colonel, are you Lieutenant Colonel Goodman
Manyanya Phiri?
20 ACCUSED: Yes, Judge.
JUDGE: Thank you. We ... I am Colonel Michael Venter, I'm
from Bloemfontein and I will be the judge in this case. I have with me here on the
bench Colonel Linda Lorraine Mametsi Makosela from the Defence Intelligence
and Lieutenant Colonel John Mogoane Moseane, also from S A Defence
25 Intelligence, the lady and the gent sitting next to me. Are there, at this stage any objections to myself or the assessors so indicated to you on the grounds that either of us have knowledge of the fact of this case which may influence us in our decision, or that we are related to you in any way in the first or second degree, or that any of us bear you such-animosity that that is likely to.prejudice
30 in our decisions in this matter, or that any of us have a personal interest in the
proceedings?
ACCUSED: Judge, at this stage, and to my best of knowledge, none
whatsoever. Thank you.
JUDGE: I would also wish to point out that apart from the
35 objections that I've already pointed out you can also object to either of the
36 assessors specifically, that either of them have ... or that there is rather reason for you to believe that there is a likelihood of a conflict of interest in this instance as a result of their participation in this case, or that there is a likelihood of bias on the part of any of the assessors. Do you have any such objections against either
5 the colonel or the lieutenant colonel?
ACCUSED: None against the assessors whatsoever, Judge, thank
you
JUDGE: Good. In which event then the court shall rise to
administer the appropriate oath to the assessors.
10 (Assessors are sworn in)
JUDGE: Thank you, you may be seated. Colonel, you may be
seated next to Colonel Simalane at this stage. Thank you very much.
ACCUSED: Yes, Judge.
JUDGE: It has been indicated in pre-trial to me that there will be
15 an application for the defence for a postponement in this matter under Rule 17(1) on account of the fact that the defence apparently is not in the possession of all documents that it would require in order to prepare for the defence. Colonel Simalane?
DEFENCE: As the court pleases.
20
APPLICATION FOR POSTPONEMENT
DEFENCE: As indicated by the court yes, the defence is making an
application on behalf of the member accused, Judge, for a postponement of this matter for the purpose of making an application to the High Court in due course for an order compelling certain parties in the Department of Defence which would include the Chief of the Army and the Inspector General of the army to provide certain documents which would enable the defence to prepare its case. Judge, we indicated to the court sitting previously, in this master that in the event these documents are not provided to the defence in the interim, that such an
30 application would be brought before this court when it resumes today. The
. .
was ... then, Judge, with your assessors who are the same assessors that were
here previously, Judge, for your assistance, consensus as it were on the line of
action that will be taken before seeking assistance from the High Court. The line
of ... indicated of approach was that we should seek finality from prosecution by
35 approaching the Director of Military Prosecutions to see whether he can assist
the defence or not, and that if we then don't get that kind of assistance we could proceed with the kind of application we would like to present to the High Court. We indicated ... the defence indicated before this court that for the purpose of seeking assistance from the High Court the member would have, in the normal
5 court have had to seek legal assistance for the purpose of doing such an application. It was indicated that such authority in the Department of Defence who is the financial controller in terms of the relevant acts, that's the Public Finance Management Act will be the Secretary for Defence who would either grant or decline an application for legal assistance. That the response from the
10 Director, Military Prosecutions would form part of the papers of the member when seeking such legal assistance to indicate that all possible avenues in the DOD have been attempted without success to get the particular assistance the member seeks. Consequently, after the court had adjourned a formal application was made, I have a copy which I would like to hand in as to form part
15 of the record, and it may be indicated accordingly, as the court ...
JUDGE: Just show it to the prosecution. Have you seen that
application?
DEFENCE: In fact it was also copied to the prosecution and
through our register ...
20 PROSECUTOR: Yes, Judge, I did not get a copy initially, but did
eventually get a copy yesterday from the Director of Military Prosecutions. JUDGE: Do you have any objection to the document being
handed up?
PROSECUTOR: As proof of the document being handed to Director,
25 Military Prosecutions no objection.
JUDGE: Thank you.
DEFENCE: Yes ...
PROSECUTOR: Sorry, Judge, not to the content thereof,I just wish to
make it clear.
30 JUDGE: Sorry. Just repeat that.
PROSECUTOR: We dispute the contents of the letter ...
JUDGE: That is to say the arguments made herein
PROSECUTOR: The arguments pertained in the letter, yes.
PROSECUTOR: Submitted to Director, Military Prosecutions, correct,
Judge.
JUDGE: Thank you. The document dated 17 February 2004
under file reference "C... (unclear) .../file/R/98007693PE, Colonel ... (unclear) ...
5 Simalane for enquiries is marked as Annexure "A" to the proceedings. Please
proceed.
DEFENCE: Thank you, Judge. It was only yesterday, 23 February
that I was called by ... (unclear) ... to his office, who is my Director of Defence
Counsel, who said he has a document which he would like to hand over to me. I
10 went to General Sparma's(?) office and he gave me a letter dated 18 February 2004 addressed to ... for action of defence counsel by General Slabbert who is Director of Military Prosecutions. This letter purports to be a reply to the said Annexure "A" which has been filed, Exhibit "A" and I want to file this letter ... of record, this letter does not assist us, it has one paragraph which is incorrect
15 which claims certain documents were given to us, to the defence ...
JUDGE: Could I interrupt you?
DEFENCE: Yes.
JUDGE: Any objection to the documentation being handed up?
PROSECUTOR: No objection.
20 JUDGE: It will be marked as Annexure "E" then. Just one
moment, its dated 18 February 2004 under file reference "C... (unclear) ... 6/R106/8/98007693PE, Enquiries Brigadier General G R Slabbed, Annexure
DEFENCE: Yes.
JUDGE: Please continue.
25 DEFENCE: Yes. Judge, this letter especially paragraph 2 thereof is
not correct to the extent that it says the document have ... have indeed been supplied to the accused." When General Sparma gave me letter and being such a shod letter, I read it immediately while I was with him, I point out to him that "General Sparma, it's not helpful, this letter is not givinc us documents: In
30 fact it contains an untruth, it is an incorrect statement that these documents were
furnished to us." And to that extent I, as the representative of the accused
member I will point this out to the Director, Military Prosecutions that it is
incorrect and that he has not been helpful, and so that a correct .presentation should appear before the relevant authorities who would consider the legal 35 assistance that is required in this matter to enable us to take the matter forward.
Judge and your Assessors, the constitution ... (unclear) ... the final constitution, Act 108 of 1996, section 35 provides that the defence must be provided with adequate time and the necessary papers to enable it to prepare its defence, that what Colonel Phiri as the accused member in this case is in fact seeking to
5 achieve I submit with respect, Judge, is the fulfilment of his constitutional right to be able to be tried, having fully prepared for the case. I can indicate, Judge, and for the benefit of this court that the defence has already been stretched to the limits. According to my instructions the member does not want to have this thing hanging over his head further, and he would like, for the purpose of his career in
10 the SANDF that this case be brought to finality as soon as possible, hence the instruction that now that this assistance we have sought has not been forthcoming, we should bring finality to the question of this document by getting this High Court order which this court indicated would be the necessary remedy for the accused, would offer the relief to the accused. This court has already
15 indicated previously through Colonel Luus sitting here that it is not competent to make an order of this nature compelling the relevant parties who are in possession of this document to release the same. It only went which the assessors would be aware of, to only ... and my learned friend, the prosecution that the court only indi... directed the previous prosecution counsel to assist us to
20 get those documents because it was not in a position to order that such assistance be given. I regret to say that we did not get this assistance, that there were arguments of the documents being collateral, being a matter which we can pursue ourselves, which we have tried, the member himself has addressed letters, they have been exhibited here previously, addressed letters ...
25 the member himself to the Chief of the Army, to the Inspector General, hand delivered the letters listing the documents, asking the documents are required for court, please, his pleas were turned down. When I was eventually instructed as defence counsel in this matter, instructed by the member I did myself write those letters to the relevant authorities, and again they spurned me, they did not
30 assist me and I expressed my exasperation to this court and the court said,
"okay, try the Information Act" and in the end it did not assist because the final
letter we got from the relevant information officer was that we should get it
through the court process, which court process, Judge, has also not been able to
help us. Now without going to.the.merits of .this. case, the letter which the court
35 now has as Exhibit "Al' will show the specific defences which the member is
bringing, the relevance of the documents to his case and that he has previously made requests himself for these documents in letters to the Chief of the Army. It would appear in some ... (unclear) ... that these documents are also listed and stated as being required for the court, and this has not helped. Now to make
5 matters short, Judge, we are saying we would like the court's assistance in postponing this case solely to give us, the defence an opportunity to approach the High Court and seek assistance of the High Court, and get these documents and get done with this case. The member wants to have his career in place and know about his future, and not to have this hanging over his head, He has said
10 clearly in the papers which now the court has as Exhibit "A", that has been framed, things are explained there that without those documents it would not help his defence. Finally, I can only say that, as. I've already alluded to, that Colonel Luus directed us to be assisted by the prosecution \.vhich assistance we did not get. After his retirement and Colonel Venter coming into the picture, he
15 had his own suggestions, I cannot now be able to say clearly what was the nature whether it was a formal application or not, I can cniy indicate that this question arose when looking at what has been happening :nto the records, and the court in the person of Colonel Venter indicating that peitaps wanting to help the defence if we let the case go and through further cross-examination and
20 subpoenaing that certain documents be presented, that v.e can ultimately get those documents, We did not buy to this approach. Tne accused was not happy because he felt this approach is like going on a fishinc expedition. We do not knowwithout the information which is in those documents we can't cross-examine the witness and be able to put his case, and be ab:e, to relate even if we
25 want those documents to be subpoenaed to say to the court documents ... certain documents gave this version, we cannot make a submission to the court on the basis of information which we do not have. So, this soproach therefore, Judge, did not offer a solution to the ... what may, for lack c: a better word, call an impasse here that is a reason that we need documents lawfully and
30 constitutionally, and we don't get assistance, they have pct been provided. Therefore, Judge, I'm therefore saying that the application before you is founded, it's based on the constitution, I've cited the relevan: provisions, I've ...
. . .
based on the rules Exhibit ":A" would say the rules it's motivated that the
defence must be provided with prescribed documents to be able to provide ... to 35 prepare its defence. We are saying these documents have nat been provided to
us, we are saying in a nutshell, and finally that we crave this court to consider a postponement for the reasons advanced, that we will make full use of that opportunity if granted, to approach the High Court immediately we get that postponement, that we will exhaust ... (unclear) ... that we will be able to give a
5 report to this court as to the progress in that regard. These are our submissions for the defence on this request for postponement. This kind of application has never been made before this court previously as has been done today, to utilise this opportunity of going to the High Court, it's always been viewed as a last resort. We are therefore resorting to this opportunity as a last resort to ... so it is
10 not the kind of application which the court can say it's either brought lightly, it has been brought previously or tendered in any other way, it is a first application before you, My Lord, and Judge we crave your indulgence that this opportunity be granted, and so that this matter can come to an end in a fair trial to which the accused is entitled, in terms of the constitution. As the court pleases.
15 JUDGE: Thank you. Is the prosecution in a position to answer at
this stage, or would you want a moment to reflect?
PROSECUTOR: The prosecution is ready, Judge.
JUDGE: You may proceed.
PROSECUTOR: As the court pleases, Judge, thank you.
20
REPLY BY THE PROSECUTION
PROSECUTOR: Judge, I have in my possession a transcription of the
proceedings up until just before the last sitting of this court, which was on 27 January 2004. On the very first page of the transcription which is held on 27 April 2002, it says this case has been postponed five previous times through judges to the court" and then it refers to June 2001 being the date that this case first came to court. Judge, we are looking at almost three years that this case has on and off been before this court, and on and off applications have been made for documentation. With regards to the applicatiOn to Director, Mii:tary•
30 Prosecution in answer to what my learned colleague has told you, the impression that I got from our last session, and obviously my learned colleague disagrees with me, is that
JUDGE: Let your learned colleague speak for lrymself.
PROSECUTOR: Yes, that I was in a position to obtain these documents
33 and therefore I should, and my position as is said to the court ,.. as was told to
the court was that I am not in a position to get these documents as I am under instructions that sufficient have been given already, sufficient documents i.e. the PI, the charge sheet, the Notice of Enrolment, the documents which the defence required to prepare its case. And therefore on that day Colonel Colby being the
5 presiding judge on that day suggested to defence counsel that should they still wish to pursue the avenue of obtaining those documents \.ia prosecution that an application should be tendered to Director, Military Judges. That day was 27 January 2004, the letter which eventually reached Direct°, Military Prosecutions was dated 18 February 2004, 22 days later, and I find it surprising that 22 days
10 later an issue of such grave concern and such urgency is only addressed to Director, Military Prosecutions then. Be that as it may, the answer that Director, Military Prosecutions wrote was dated 18 February, I cannot dispute that my learned colleague received it only yesterday, all that I can say is that the reply was indeed dated 18 February. My learned colleague is cf the opinion that the
15 letter addressed to himself, paragraph 2 specifically is correct, we wish to dispute this, Judge, in that we are absolutely dead certa n of our case in the sense that the documents that Colonel Simalane and Coidnel Phiri required to prepare for this case have been provided. And If one looks at the charge sheet, and if one were to look at the exhibits previously presented to this court. and I
20 know, Judge, that you have indicated that you have not Id dked at it, but if you were to look at those exhibits you would see that the docuhlents that the state has provided to the defence are sufficient for them to prepare on the charges.
jnr: Let's just be absolutely clear what •,e are talking about.
Rule 107 merely states that "such documents the defence . the defence would
25 require to prepare" ...
PROSECUTOR: Yes.
JUDGE: In the opinion of the prosecution that would be the
Notice of Enrolment, the prosecution and the preliminary investigation? PROSECUTOR: The prelim... the Notice of EnrolmeTt the charge sheet
30 and the preliminary investigation, yes.
.......
JUDGE: And that would, in the opinion of the :rosecution suffice
for Rule 107 purposes?
PROSECUTOR: Yes. If it were shown to us that there are other
documents that are relevant to the charge sheet, then ob. Dusty prosecution 35 would assist, but we have not been shown any relevance, J',.:dge. Now, Judge,
coming back to what my learned colleague said about the order by Colonel Luus, I again wish to refer you to the record. Now, when I took over this case from Major, now Lieutenant Colonel Boshoff she said to me that there was no such order by Colonel Luus, so I did listen to what Colonel Simalane, my learned
5 colleague said, and I went and I looked through the record, all I could find was
this, on page 88 he says, ...
JUDGE: Who is this?
PROSECUTOR: Colonel Luus, the ...
JUDGE: Yes?
10 PROSECUTOR: ... the ... a previous judge. "Now, it might be that by that
date the state is in a position to, prior to that date give all the necessary requested documents to the defence, and only one application might be on the court roll for that day. However, the court is going on the presumption that the 28th is scheduled for two applications to be made by the defence" and he carries
15 on and on and on, that is all that I could find on record regarding any inclination, any idea that prosecution placed under some sort of onus to obtain the document. And with due respect, Judge, this is no order, this is, as I've just quoted does not say "Prosecution will obtain the documents for the defence." Now Judge, my learned colleague also has made it clear that he does not know
20 what the contents are of these documents that he wants, he says "we do not have them, we cannot tell you what the relevance is", and Judge, if there is no relevance that can be proven at this stage how can we allow such an application.
JUDGE: Could I draw your attention to the documents that have
now been marked as Annexure "A" before the court?
PROSECUTOR: Yes, Judge?
JUDGE: There is an Appendix "A" to that doc...:ment.
PROSECUTOR: Yes.
JUDGE: "List of required documents for cour: purposes.
30 PROSECUTOR: It is the next point that I wish to address you on, yes,
Judge.
JUDGE: Could I just remark, if ... in respect of this last remark of
yours that the reader in this Appendix is legally warned that the said documents are requested for one only purpose i.e. to provide, or prove in court the case of 35 the victimisation." Are you intending to refer to that matter?
court will now afford the defence the opportunity to lodge the application formally, and if need be that they support this application by calling apparently the accused, Lieutenant Colonel Phiri to give evidence under oath, but the court must stress that at this stage we should confine ourselves to what is strictly
5 relevant to the case, and what is reasonable and necessary to enable the defence to properly conduct their case so as to, for instance, cross-examine properly in the light of any former statements made by witnesses who will probably be called by prosecution counsel. Defence Counsel, you may now bring your application." Now this is ... he refers to an application, but it is clear
10 from the meaning, if one listens to what is reasonable and necessary to enable the defence to properly conduct their case, that he's once again referring to the documents, and then Colonel Simalane does indeed bring the application by means of evidence of Lieutenant Colonel Phiri. Then on 14 March 2003 Colonel Venter gives his judgements in the case, amongst the documents that you have
15 not read there is a written trans... version of this, but I will read it into the record, page 166, so the court is proceeding at this stage to deal with an application by the defence at our last sitting. The has written out a document which I call Annexure "A", and I've given it a heading which reads Court Ruling on Application by Defence Counsel for Accused to be furnished with certain
20 Documents before the charge sheet is read, and I start, "at the previous sitting of this court on 31 January 2003 defence counsel applied on behalf of the accused Lieutenant Colonel Phiri for his client to be given 34 documents listed in Exhibit "E" to enable the defence to prepare their case, this is in addition to the preliminary investigation which is already in the accused's possession and which
25 forms part of Exhibit "A". Defence Counsel called Lieutenant Colonel Phiri to the witness box to give evidence in support of the application, and thereafter defence counsel and prosecution counsel addressed the court, the defence based their application on the general provision in terms of section 32(1) of the Republic of South Africa Constitution Act ..." he's obviously missed out the
30 number and ... (unclear) .... 1996 in terms of which everyone has the right of access to any information held by the state that is required to the exercise or protection of any rights, such rights include the right to defend oneself to the fullest extent in a criminal trial such as is the present case. He carries on to discuss the Access to Information Act. I'm going to skip that part and go on at
35 page 168 referring to the handing over of the PI, this happened some time ago, it
seems to be evident from Exhibit "A" which includes the PI in which handed in by the defence in support of their application for disclosure. Having regard to all the above consideration this court is satisfied that the defence is already in possession of the prescribed documents referred to in Rule 107 MDSMA. In the
5 words of section 35(3)(b) of the 1996 Constitution Lieutenant Colonel Phiri would appear to have had adequate time and facilities to prepare a defence. This seems to be more than evident from the various exhibits which were submitted to the court in support of the defence's application for disclose of documents. In the Namibian case of S v Natja, 1995 (1) SALR 212 in (m) which is dealt with the
10 principle of equality of arms as one of the principles of a fair trial, the court held that the state's obligation to disclose documents is confined to the provision of facilities that are adequate, the adequacy of the offered facilities all to be determined by the trial court and is not dictated by the accused." In this regard it was held by D P Mohomed in the Shobalala case that "factors to be taken into
15 account when a court decides that access is not justified for the purpose of a fair trial are (a) the simplicity of the case with reference to the la vi, the facts, or both." And then in Lieutenant Colonel Phiri's case the charges are inter cilia charges are, I stand corrected, section 17, crimes injuria, section 14(b), section 14(b), section 14(b), section. 19(2), section 17 and those are the seven charges, and
20 apart from the charge of crimes injuria the other charges, in terms of the MDC are routinely dealt with by a military court, and are not of a complex nature. The degree of ... then going back to the case of Shabalala, point (b), the degree of information already in possession of an accused is also taken into consideration. Even in serious cases heard in the High Court the amount of information
25 disclosed to an accused through the indictment, the summary of substantial facts and further particulars furnished on request could obviate any need for the disclosure of statements. The genera! principle as stated above is that there must be an equality of arms between the prosecution and the defence, and that on the face of it, and bearing in mind that the defence May call witnesses and
30 subpoena them, they've put in brackets (Latin), they didn't understand, they
couldn't hear what was being said, the defence .cannot be said to be at a
disadvantage in this trial for a lack of not possessing some heavy artillery. Okay,
and I've put an ! mark behind that. Can I just refer to these exhibits? On the contrary, merely comparing the PI to be used by the prosecution as a basis for 35 their case to Exhibits "A" and "E" as the basis of the defence's case it would
47 seem that the prosecution might be outgunned. Okay. The court has therefore come to the conclusion that the application of the defence cannot and does not succeed. The ratio decidende is based on section 7 of the Assess Information Act and the ruling of this court is that the defence's application is dismissed, and
5 that the accused will be required to plead on the charges at the appropriate stage. He then proceeds to say whether he should re-cuse himself because then he had access to the PI which is not relevant at this stage. Judge, therefore it is prosecution's submission that this submission which Colonel Simalane has put before the court today has already been dealt with by this
10 court adequately, and what Colonel Simalane now requests of this court is to review its own decision. Judge, in addition prosecution finds itself in a position that an application must be made to this court where the proceedings can be hastened, where the proceedings can be pushed to such an extent that we may just begin with the case. Now, my basis for this application, Judge, ...
15 JUDGE: Could I just ... there's an application by the defence for a
postponement. You have a counter-application?
PROSECUTOR: Yes.
JUDGE: Is that what you are saying?
PROSECUTOR: Yes, Judge, and that is that the case not be postponed.
20 JUDGE: So you oppose the application?
PROSECUTOR: Definitely, Judge, and that our application is that an
order be made by this court that the case indeed proceed. I wish to refer you. Judge, to Rule 20 MDC and 21, and then 124. Now 20 says that the general principles of the national law of the Republic with regard to criminal liability shall be followed in, and by a military court." There is a proviso thereto which is subject to Rule 124, "the laW of criminal procedure as appLed by the civilian courts of the Republic do not supplement the powers of the military courts" of these rules. But then 124 says "when in the application of the ... (unclear) ... code including these rules any matter arises for whith no provision has been
30 made such course as appears to be consistent with the provisions of the Act, the
. . ......
Code and the Rules and that calculates it to do justice shall be adopted." And thus, Judge, make an application in terms of section 342(e) of the Crin:inal Procedure Act based on the fact that the MDC Defence Act does not provide for hastening, or expediting of trial. procedures, or of a trial per s? and therefore we
35 now bring this application. If the court were to find in any event that section
48 342(a) of the Criminal Procedure does not apply there is also the common law route, which may be followed as a common law principle that each person has the right to a trial which is dealt with as expeditiously as possible. Now this person that is referred to is not necessarily only the accused, but the state also.
5 The reason why this section was brought into the legislation ... (unclear) ... of our country was the following, this section, and I quote from du Toit's Criminal Procedure Acts commentary, "this section was introduced as a result of a recommendation of the South African Law Commission contained in the interim reports on the simplification of criminal procedure, Project 73 of August 1995.
10 And then saying that there were certain cases that were decided on, and basically saying that it was an untenable situation, where oases lagged on and lagged on and therefore the Legislature had jumped in, in order to remedy the situation. I wish to read the relevant part of section 342(a) into the record, it is headed "Unreasonable Delays in Trials":
15 (1) A court before which criminal proceedings are pending shall investigate any
delay in the completion of proceedings which appear to the court to be unreasonable and which could cause substantial damage to the prosecution, the accused, or his legal advisor, the state or a witness.
(2) In considering the question whether any delay is unreasonable the court
20 shall consider the following factors (a) the duration of the telay, (b) the reasons advanced for the delay, (c) Whether any person can be bla-ned for the delay, (d) the effects of the delay on the personal circumstances of tne accused and the witnesses, (e) the seriousness, extent or complexity of the charge, or charges, (f) actual or potential prejudice caused to the state tear in mind, Judge,
2:5 "actual or potential prejudice" caused to the state, or the defence, by the delay, including the weakening of the quality of evidence, the possible death or disappearance or non-availability of witnesses, the loss of evidence, problems regarding the gather of evidence and considerations of cost, c) the effects of the delay on the administration of justice, (h) the adverse effects on the interests of
30 the public or the victims in the event of the prosecution being stopped, or
discontinued, (i) any other factor which in the opinion of the court ought. to. be
taken into account.
....
(3) Goes on to say that the court may make any order which it deems fit under the circumstances, and then under (3)(f) one of the orders v.hich the court may make, to which the court is not limited is ... sorry, it just started (a) refusing
49 further postponement of the proceedings and then at (f) that the matter be referred to the appropriate authority for an administrative investigation, and possible disciplinary action against any person responsible for the delay. That is an introduction, Judge. Now, I've made a list of all the various postponements
5 that I could find from the documentary evidence that I had, I relied on the transcription of the case up until the point of the last session which was transcribed was 10 June 2003. The first session which was transcribed is 27 April 2002 as previously mentioned, and therein is reference to five previous court appearances. At this session, according to what I could glean from the
10 transcription it was postponed in order to obtain further information, it was postponed to 24 June, however, I don't know what happened there it only continued in September 2002, and then 10 September 2002 therean
waS
application in respect of the recusal of the assessor ...
JUDGE: On what date?
15 PROSECUTOR: On 10 September. And there vies an application, or
there would have been an application in respect of the documents and an application in respect of the recusal of the judge, howeve-, time caught up with them and it appears that only the application in respect of the recusal of the assessor was dealt with on that day. On 28 November 2002 when the new
20 assessors were presented there was once again an application in respect of the recusal of the assessor. The case then postponed to 23 January 2003 and unfortunately the court manager was not able to arrange a suitable assessor, the case was thus postponed to 31 January 2003 and there was an application in respect of the documents, and ...
25 JUDGE: The date again?
PROSECUTOR: 31 January 2003, that was ... the result of that was the
part of the transcription that I read to you now that Colonel Venter made a
judgement. Then on 14 March 2003 there was an applicat•on for the recusal of
the judge. Now here begins the problem, Judge, then on 0 June 2003 the case
30 was scheduled to continue and the assessor was not present, it was also scheduled for 10 June 2003 and once again the assessor .was not present, and whilst there may have been good reasons for it, Judge, it would appear that at
• -- • this late stage after all the postponements, one could surmise that the assessor had begun to lose interest in the case because one can.see this case just gets
35 postponed and postponed, and postponed. And then on 27 January 2004
further postponement of the proceedings and then at (f) that the matter be referred to the appropriate authority for an administrative investigation, and possible disciplinary action against any person responsible for the delay. That is an introduction, Judge. Now, I've made a list of all the various postponements
5 that I could find from the documentary evidence that I had, I relied on the transcription of the case up until the point of the last session which was transcribed was 10 June 2003. The first session which was transcribed is 27 April 2002 as previously mentioned, and therein is reference to five previous court appearances. At this session, according to what I could glean from the
10 transcription it was postponed in order to obtain further information, it was postponed to 24 June, however, I don't know what happened there it only continued in September 2002, and then 10 September 2002 there was an application in respect of the recusal of the assessor ...
JUDGE: On what date?
15 PROSECUTOR: On 10 September. And there was an application, or
there would have been an application in respect of the documents and an application in respect of the recusal of the judge, however, time caught up with them and it appears that only the application in respect of the recusal of the assessor was dealt with on that day. On 28 November 2002 when the new
20 assessors were presented there was once again an application in respect of the recusal of the assessor. The case then postponed to 23 January 2003 and unfortunately the court manager was not able to arrange a suitable assessor, the case was thus postponed to 31 January 2003 and there was an application in respect of the documents, and ...
25 JUDGE: The date again?
PROSECUTOR: 31 January 2003, that was ... the result of that was the
part of the transcription that I read to you now that Colonel Venter made a
judgement. Then on 14 March 2003 there was an application for the recusal of
the judge. Now here begins the problem, Judge, then on 0 June 2003 the case
30 was scheduled to continue and the assessor was not present, it was also scheduled for 10 June 2003 and once again the assessor vies not present, and whilst there may have been good reasons for it, Judge, it would appear that at this late stage after all the postponements, one could surmise that the assessor had begun to lose interest in the case because one can see this case just gets
35 postponed and postponed, and postponed. And then on 27 January 2004
Colonel Colby presided before this court and she, of her own accord, recused herself, however, there were arguments regarding the documents before this court. Now Judge, this case has obviously come a long way already, the documents, as you can see, are many, it is a thick transcription already, and
5 Judge, we are not even at the plea stage yet, and that for charges which are mainly disciplinary in nature, there's one charge of crimen injurio, but the rest are all disciplinary in nature. Then Judge, I also wish to address you on the witnesses that the prose... that prosecution has, the prosecution has three witnesses, two witnesses find themselves within the borders of the Republic, and
10 their services will not be a problem, they will be willing to come and testify in court, they are somewhat tired of the lengthy delays but they will be willing to come and testify in court. The third witness finds himself in ... I spoke to him yesterday, Lagos, Nigeria, he's working there on a contract basis, he informed me that he has been in South Africa on three occasions for purposes of this trial,
15 each time he comes at his own cost and the trial has still not continued. My agreement with him at this stage is that he remain where he is until we have some sort of confirmation from the defence counsel's side of when we will be able to bring his evidence to court. Now, Judge, I think ... it is prosecution's submission that when one looks at the length of the delay, when one looks at the
20 weakening of the quality of the evidence which can be presented to this court after so many years have past, and when one looks at the problems that we are having with procuring the evidence of the witness who finds himself in Nigeria, one cannot make any other order but to see that there is potential prejudice to the state's case in terms of section 3(4)(2) to (f). And prosecution ... and that
25 would be at the very, very least, and prosecution therefore asks the court for an order refusing further postponements of the proceedings, or alternatively that the court decide that the matter be referred to the appropriate authority for an administrative investigation and possible disciplinary action. As the court pleases.
30 DEFENCE: Excuse me, Judge.
JUDGE: Just a moment. Right, Colonel Simalane, there's ... your
application for a further postponement is opposed officially by the state and the
flip side of the coin is actually then that the court should continue what ... if the application is granted, the trial cannot continue, and if the application by the 35 defence is denied then the trial shall continue and then with reference to section
3(4)(2)(a) of the CPA thrown in for good measure. What is your answer to that? DEFENCE: Yes, in fact, Judge, I was calling to the court in case it does not happen because the defence feels obliged to reply and would appreciate an opportunity to reply to the address by my learned friend, including
5 of course the application which she has ... (unclear) ...
REPLY BY THE DEFENCE
DEFENCE: Judge, it will be common to the assessors but not to the
court but it is on record that the present prosecution counsel is only making a
10 second appearance in this case, and the first appearance was during the previous month. Judge, with due respect, it is common cause that this case has a long history starting about 2001, it has a long history, that for one reason or another the case has not commenced. I want to say with great respect to the court, and in answer to my learned friend that that it is so cannot be ascribed to
15 the defence solely, there were other reasons. Of course the prosecution has only made available what is convenient to its case which it wants to make. It is important, and this point is made, that the accused member has not charged himself, that the prosecution is putting up the case for the state, that in so doing the prosecution must play by the rules, it cannot have its cake and eat it. The
20 dark ages are gone where a person used to be dragged in court and come up in five minutes and told "you are guilty" and you can go and serve your sentence ... (unclear) .. in the labour camp or somewhere. We are living in a constitutional democracy, these things are very important, My Lord, the constitutionality of the present democracy and the provisions which emanate from this constitution. I
25 have made the point which I don't want to belabour that the matter comes from what ... 2001 that there were postponements, Judge, and I say those postponements were not solely of the account of the defence, for one reason or other the matters did not proceed, not at the request of the defence only. At some point, as it had come out later that there were objections on maybe some
30 of the assessors, those objections were not trivial, they were sustained, they were made for. even -good reasons and._ in terms of the rules and they were disposed of. We have not today made any objection, the court can bear us out,
the court has asked the assessors to take over for the mason that I'm ...
(unclear) ... in that regard. And when there various grounds to make objections
they were made, and defence cannot stand to be punished for that, that
57
somebody who was responsible for putting the court together, did not do his homework, or her homework. And it is not the responsibility of the defence to constitute the court into set-up and to elect the assessors and the presiding officers, all those things are done by different parties. So, in a nutshell, the
5 defence should not carry the can whatever delays that matter for reasons when objections were made in terms of the rules. Judge, with respect my learned friend has selective chosen what she thinks would be better for her to address you on in respect of the charges, quoting from Exhibit "K., Appendix "1" of that Exhibit "A", there are a list of documents drawn there, and to say ... to have the
10 courage to have the courage to say the issues only relate to the accused
there is an Annexure in this Exhibit "A" from the Beeld, I quote ... I'm not Afrikaans speaking, (unclear) ... Afrikaans "diskriminasie (onduidelik)
dreig die ... (unclear) ... kollega studente (not a student) the way what Colonel Phiri, studente instrukteers ... (unclear) ... We don't see them in court here, we
15 only have the accused member, Colonel Phiri, waar is die instrukteers, waar is die students, why is it only ... and we are saying documents are required if this member is to be framed, where were the events that are reported here before the court exhibit, it talks of students, it talks of instructors, it talks of a commotion at the college. I'm aware that the court does not want to go into the merits, but
20 it's the matter that was officially investigated and the prosecution wants that report to fall into the darkness, that it must not come before the court to know what came out of the investigation. a reported official investigation of this department resulting in the member before this court being charged of certain charges. It's no longer studente and instrukteers, it's just one member, Colonel
25 Phiri before you, Judge. The question is what prejudice ... what prejudice will the prosecution suffer ... I'm taking the uttermost picture of it all, if the prosecution counsel and his team ... and her team are of tne view that its not relevant for their case and the defence deems it relevant to tineir case, it says the member is framed. If one reads paragraphs 4 and 5 Exhibit A", page 2, the
30 event the Director of Military Prosecution is unable to assist us in this matter it is
my instructions to apply for an adjournment of this matter for the purpose. of
allowing Lieutenant Colonel G M Phiri to seek the assistance of the High Court.
For that purpose it would be necessary for Lieutenant Colone' G M Phiri to apply
for the state legal assistance in the premises it is our hope, even at this stag.e.,
35 the letter reads, Exhibit "A" that the relevant authorities will co-operate. and the
necessary documents be made available to the defence without embarking on the costly High Court route. Paragraph 5, I may further add that it is also Lieutenant Colonel G M Phiri's defence that he has been framed for reasons stated in Appendix 6, above. The documents required that are according to my
5 instructions are also intended to enable the said Lieutenant Colonel G M Phiri to prove this particular defence." There is an exhibit talking about "studente and instrukteers", there was (unclear) ... Judge, as I've already made the point, there's only one Phiri before you, the other people are not there, he says he has been framed. There's an official investigation, a number of students gave
10 evidence, made statements, which are in that report, including the indicated state witnesses. Defence will never be able to say whatever version they have, whenever that version come of events if some of these documents are not here, we will never know about that, we'll never be ... we are put in a very invidious situation, Judge, if it could be argued that the member can proceed without the
15 relevant documents which include this particular report on a particular investigation, to which people made ... (unclear) ... he was denied, Judge, without going into the merit, the member was denied that opportunity by the Inspector General to testify and he wrote a grievance, and arising from that he was charged. And really how will a fair trial arise to which he's entitled to? I'm
20 going further, My Lord, I've made that point, there is a distinction which the court in chambers wanted us to make, and I'm reverting to it specifIcally that there has been a reference of Colonel Venter's consideration of the document issue. It was even pointed out to Colonel Venter that he's not sitting as a Court of Appeal because of Colonel Luus who had said previously because it was clear. My
25 learned friend was incorrect to say there may have been an order, there was no order. The court, in Colonel Luus did not make an order tnat the prosecution assist us, direct urged ... it came ... clearly the court was up-font to say we don't have the competence now, we don't have the competence to order the release of the documents to defence counsel. We can only plead the assistance of
30 prosecution counsel. So when at the next stage Colonel Venter wanted to have a view of what these documents are all about, not that he was going to bring a relief in the sense that you could have ordered, it was not within his competence to order the release of the documents, he wanted to have his own view as to whether those documents would be, and I said, "okay, you require evidence, let
35 the witness explain himself to you, Judge, the relevance of the documents and
their importance for you to be able to make a picture." It was not like at the end of the day be able to ... for us to get a relief. Now, the ultimate he came with, as the court is now aware from what my learned friend has read, to -say they have been over-pealed if those documents are released they will make the defence
5 more stronger, there is no equality of arms, what, what, those are irrelevant and certainly were not issue, it was just to assist the court to see that in fact indeed the defence is not making it from the point of argument on the law, the relevance of the documents that they could be evidence tendered by an intelligence officer who is ... (unclear) ... analysing those documents and their relevance therefore.
10 And I though I must give the accused the opportunity to explain to the court the relevance of them, that was the whole exercise. The court could not all of a sudden have been competent to make an order that they be released. So in a nutshell, Judge, the point I'm making is therefore that the avenue we are seeking, and for which we seek this postponement, has never been utilised, has
15 never been an issue that in the event the documents do not come we will seek this avenue. All what happened also is that after the court in the person of Colonel Venter of the reserved forces had heard for himself to a satisfaction the relevance of the documents as explained by the accused to find hirnself in an invidious position that he knows so much from a different part (unclear) ... to
20 make it necessary for him to recuse himself. We don't wan: him to put this court into this kind of situation, we ... the application has never been made for a postponement for the purpose of going to the High Court tp get that particular order we seek, and to get this relief. This court has already made its position clear, that it is not within its competence to make such an order and therefore we
25 are requesting the assistance of a higher court, of a superior court in this country, to get that relief. Exhibit "A", v.ihen the court has the time to read it and to take ... will see that the documents are relevant. Why :he application was eventually made as the letters dated the 17th is that the accused member was preparing an affidavit, I asked something specific on the rele zance to assist the
30 Director, Military Prosecutions, that's why there's a fresh affidavit, Appendix 6 of Exhibit "A", it's an affidavit attested to ... on 16 February. When we adjourned I asked that a specific statement that must assist this important decision be made and it's made on oath, the question, the basis on why he's framed, why he's here, what was happening at the Defence College, it's explained on ... (unclear)
35 ... affidavit. The ... it has not been previously, it's ... (unclear) ... 16 February, on
the 17th I hand in this document, Exhibit "A" to the Director, Military Prosecutions. We are in the same building, we went to the Registrar, the same day he got it, there may have been a delay with another copy that went to my learned friend. She had her own copy which is marked for her own attention, not the one for the
5 Director, Military Prosecutions, her own copy was made for her. At the time it was ... the point is therefore, Judge, that a case has been made even with the latest evidence of relevance and the defence of being framed, and the charges which are there, the crimen injuria ... (unclear) ... issues and the whole motive it's not been simplistic to say one of my witnesses disobeyed and .... the whole
10 termoil arises from the ... (unclear) the college, the commotion. The case has to do with the college, the dates, if one looks at the charges it's dates relating to the course, the Junior Staff Course and the things that were happening there and the whole turmoil has been reported in the newspapers and that the member is therefore being framed because he wrote a redress of wrongs to say
15 I'm aggrieved by the fact that when the Inspector General was takes evidence from the witnesses, students and the directing staff he excludes me specifically, not by chance, the member sought an opportunity to say that and also testify, and because of that charges are coming against him. These things are solely explained in his affidavit, and people who may have ... in fact have incited the
20 racial tensions, and made racial allegations for which he is now charged, and those documents will bear out this kind of things. And we need to read these documents and prepare our defence, and finally, on this point. therefore, Judge, it is common cause ... it is common cause that the application is before this court for the first time ever in this case that this last resort opportunity is being utilised
25 because the state and the Department of Defence and its officers have not been of assistance to the defence to get those documents, it's tne first application. We're saying it is well made, it is in terms of the rules, r. in terms of the constitution that the accused would like to prepare for its defence, and that the documents as requested will assist him in so carrying out his tefence, that he is
30 approaching a superior court of this country for these people, and that this court,
being an inferior court should.yield to an instance where a superior court is being
approached in terms of the hierarchy of courts in this country. This should not be a very difficult concept to understand in the military establishment where the rank structure is known, the yielding of superior ranks to infericr ranks. Now in
35 this court structure and in terms of these documents the superior court is
intended to be approached to get its assistance, and the request is made bona fide, ... bona fide, Judge, to this court to consider this application favourably, to allow us to seek that avenue. There have been references, I haven't addressed it at length, but it's common cause that we, in terms of the application by my
5 learned friend, that you know the process might cause them to suffer prejudice in terms of that witnesses might forget, and the remedy has always been in the hands of the prosecution to get the documents to let us proceed. The prosecution counsel represents the state, it only means an indication to them that even if we don't agree with the view that they need ... if they need them,
10 give them. And their clients, the state they represent would yield but they haven't taken that approach so they mustn't cry fowl to say there's anything untoward we are causing by seeking to have recourse to our constitutional right, to the defence's constitutional right, to the accused's constitutional right to be properly served. Those are my submissions, My Lord.
15 JUDGE: Thank you. Do you have any questions that you wish to
The court shall close to consider the applications ... (unclear) .
PROSECUTOR: As the court pleases.
DEFENCE: As the court pleases.
JUDGE: The court will not make its finding known within a short
20 space of time, I propose that this matter then stand down unti! the morning.
PROSECUTOR: Tomorrow morning?
JUDGE: Yes.
PROSECUTOR: As the court pleases.
DEFENCE: As the court pleases.
25 JUDGE: Could we commence as early as 08:33?
DEFENCE: Yes, Judge.
JUDGE: 08:30 then Colonel Phiri, please be resent at the court
tomorrow morning at 08:30
ACCUSED: Yes, Judge.
30 JUDGE: When the court will make known its finding in this
application. Thank you, Mr Court Orderly, the colonel may withdraw.
(Court adjourns)
(Court re-opens)
JUDGE: In the matter of S v Phiri, the time now is 08:06 on 25
February 2004, this court postponed this matter yesterday afternoon, or just before lunch to today at 08:00. You remember that, Colonel?
ACCUSED: Yes, Judge.
5 JUDGE: Right, I have now discussed the matter with Colonel
Simalane telephonically, and I've also just informed the prosecutor that the court will require a couple of hours more to complete my research in this matter and consequently this matter will stand down until this afternoon at 13:30. ACCUSED: 13:30, Judge, confirmation?
10 JUDGE: 13:30 it is.
ACCUSED: Thank you, Judge.
JUDGE: Thank you for your attendance, you're excused, you
may withdraw, please be present at 13:30 then and then we will continue with this matter.
15 ACCUSED: Thank you, Judge.
JUDGE: Thank you very much.
(Court adjourns)
(Court re-opens)
20 FINDING
JUDGE: In the matter of S v Phiri, the time now is 13:40 on 25
February 2004. Present in the court is myself, Colonel Michael Bertus Venter as
well as the two assessors who were sworn in yesterday, as well as the accused
plus his defence counsel and the prosecutor. The proceedincs yesterday kicked
25 off with an application after the swearing in procedure of the assessors by an application ... or with an application by the defence for postponement in this matter, the reasons of which are on record and I will not repeat again. The court, in deciding the postponement had to weigh two primary considerations, that is to say the right of the accused to a fair trial on the one hand, and on the
30 other hand the right a person has for the matter to be dealt with without an unreasonable delay. This ... (unclear) .,. of course in the inverse means that the state should also be able to continue with the matter at its earliest. Dealing with the right to a fair trial, the court South African Criminal Court decided in a lot of decisions already in 1994 that the right to a fair trial includes the right to be in a
;5 position to prepare properly, and that that implies that an accused should have
access to information which he requires to so prepare his defence... (unclear) ... must be sounded in the form of the decisions quoted in the book, Commentary to the Criminal Procedure Act by du Toit and Others where he in ... or rather on page 23-1 in service 19 thereof refers to the cases of ex parte Bradley, 1926 (OPD) 218
5 and the case of Shoo and Another v Sadovitz 1970 (1) SALR 193, a Cape Division case, which confirmed the relevant requirement in our law, and that it also relates to the issue of a subpoena with respect of a witness called upon to produce a document at a subsequent trial. In this respect, it appears from the record of the pre-trial proceedings that Colonel P R Venter ruled already on 14
10 March 2003 that the documents required by the defence are in fact not to be
supplied by order of the court as the accused is already in possession or rather in a position to answer to the charges. Irrespective of the other right, that is the right also of the state to expect to start with proceedings at its earliest, the state raised its concern with the long time this matter has been taking
to come to
15 fruit, and that she inter cilia has one witness in Nigeria which causes logistical problems in bringing him to Pretoria for the trial. Although it was not explicitly said I also understand by implication that this person has left the employment of the SANDF, I stand to be corrected, and if that is the case one also then deals with the added problem of obtaining the presence of what is now a civilian
20 member to attend this trial, over and above that as was pointed out by the state, as time goes by memories fade, and surely the state must also be in a position to place before the court the best evidence that they can muster. The court consequently looked at the sequence of events in determining whether the application for a postponement should be granted or not, and found the
25 following. That the incident complained of took place over the period 6-8 or 9 March 2001 and that is also the date of the DD1 in this matter, that on that same day, 9 March 2001 the first section 29 appearance of the accused took place, that during April of that same year, approximately a month after the incident ...
(End of tape 2)
30 (Transcription continues on tape 3)
JUDGE: ... and the DD1 and the first section 29 appearance the
accused formally instructed the defence counsel in this matter, Colonel
Simalane. The following dates all reflect section 29 appearances of the
accused, 28 June 2001, 18 September 2001; 13 November 2001, 26 November. 35 2001 and 8 January 2002, also 26 February 2002. What exactly transpired at
any of these section 29 appearances is not quite clear, I could not find any record of such appearances having been recorded on tape and the details contained on the section 29 appearance certificates themselves are sketchy, to say the least. What is however clear is that by then, that is to say 26 February
5 2002 a preliminary investigation in the matter had been concluded and had been handed to the accused. On 28 February 2002 the defence lodged an application for the release of information in terms of the Access to Information Act. On 5 March 2002 the information office at the Department of Defence acknowledged receipt of the application fore-mentioned. On 26 April 2002 another section 29
10 appearance of the accused took place, which is also the first instance that I could find of the appearance being recorded on cassettes, the appearance took place in front of Colonel Luus. The defence indicated at the time that they still required documentation which would only be available some 90 days after 5 March 2002. That state also confirmed that it advised the defence that the
15 Access to Information Act would be an applicable avenue for them to use, and did not oppose a postponement in the matter and the court clerk postponed the matter to 24 June 2002. Before the 30 days, or rather the 90 days referred to previously, lapsed a letter was emanating from the Department of Defence information office on 7 May 2002 informing the defence that the application,
20 under the Access to Information Act, was unsuccessful and approximately a month later, on 18 June 2002 the defence lodged an internal appeal against such decision. On 24 June 2002 as was postponed, the accused again appeared before Colonel Luus in terms of section 29, no recording of that instance could be found. On 11 June 2002 ,.. I regress, there's a patent error in
25 the dates. I repeat on 11 July, not 11 June ... on 11 July the information centre at the DOD informed the defence again that the appeal process had also been dealt with, and that the appeal was turned down. The letter also includes a reference to the rules under the Defence Act for relief. The accused again appeared then on 10 September 2002 before Colonel Luus which event was
30 recorded. The application for the recusal of the judge was denied at that
• instance, an application for recusal of an assessor not chosen by the accused. was denied by the court. The court also indicated that two other applications
would then be heard by another judge as Colonel Luus would be leaving the service. The other two applications would be for the .recusal of one of the 35 assessors as well as an application for ... or rather for a decision upon the
relevance of documentation requested by the defence, the matter was postponed until 28 November 2002 and the reason for the long postponement from September to November tentatively was on account of Colonel Simalane being on course. On 28 November 2002 the accused appeared before Colonel
5 P R Venter where an application for the recusal of an assessor was successful, and the case was postponed till 21 January 2003 to obtain the services of another assessor. On the said date, 21 January 2003 the accused appeared before Colonel Venter, but for some reason or another the matter was postponed until 31 January 2003 where he again appeared before Colonel
10 Venter, where there was indeed an application for documentation to be made available, the accused also testified in that instance, the case was postponed until 14 March 2003 for Colonel Venter to make his rulinc. and on the said 14 March 2003 Colonel Venter found that the accused was in possession of the minimum information required to be disclosed by the state which should enable
15 him to answer to the charges. Further that he had the option of issuing subpoenas ... (Latin) ... that is to say requiring a person to produce at court a specified document. Further that the charges in this instance were not complex, and lastly that the accused was already, to a large degree of all the information that would typically be required in answering charges such as those that he was
20 faced with. The defence answered to the court findings for an application, ... or with an application for the recusal of the judge, which cc.art denied and the matter was postponed until 9 June 2003. On 9 June, as well as 10 June the accused was present, with his defence counsel, one of the assessors, however, were not and the matter was postponed till 14 June ... oh, sort', postponed to 24
25 July 2003, seemingly this appearance on 24 July 2003 did not realise and the next appearance of the accused before a court that I have record of, took place on 27 January 2004 in front of Colonel Colby where the mater was postponed until 24 February, the reasons on ... ostensibly being the a , ailability of senior judges to deal with the matter, which brings us then to a postponement to this
30 session. Before we came to this session, however, further dates that are of note
are 17 February 2004 where a letter came from the defence counsel in this
matter to the Director, Prosecutions requesting his assistance in making
available the documentation required, and on the very next day, 18 February
2004 a letter from the prosecution denying such assistance to tne.defence in this
35 matter and than on 24 February, that is yesterday the accused appeared before
myself where an application by the defence was made for this matter to be postponed to enable the accused to bring an application to the High Court for relief in this matter. I do not wish to deal with the merits of decisions previously made by this court. My research in the matter was limited to the record of
5 proceedings previously recorded, considering the time scales that this matter took since 2001, the conduct of the defence insofar as they sought to obtain the documentation necessary, and it would appear that the defence knew since 11 June 2002 that the information ...or Access to Information Act could not be used, and at least since 14 March 2003 that the military court would not order the
10 release of the documentation sought. I fail to see why, after either of these dates, the defence did not chose to approach the High Court for the relief they now seek and why the postponement is only now sought from the court. In considering the application I took into consideration the length of the delays since the trial started, the reasons for the delay, including the instances where
15 the assessors were not available, the complexity of the charges the accused is faced with, the information the accused already has available to him as can clearly be seen from the details in which the accused testified before the court, the vigour with which the defence pursued options, specifically after the decisions referred to on 11 June 2002 and 14 March 2003, as well as the lack of
20 precedents in law provided by the defence to convince the court of the need for a postponement under the circumstances. I'm of the opinion. and it is indeed my finding, Colonel Phiri, that the accused has had sufficient time to prepare in this matter, that the defence is in possession of the minimum information required to answer to the charges to it, that you have sufficient information about the
25 circumstances and the facts of this case that you can pursue your defence without having ... without the need for a further postponement in this matter to obtain such and consequently the application for a reman± in this matter, to approach the High Court, is DENIED.
DEFENCE: As the court pleases.
30 PROSECUTOR: As the court pleases.
JUDGE: Madam Prosecutor, would there be any amendments to
the charge sheet that you wish to bring to the notice of the cc...:rt, or charges that you wish to withdraw?
PROSECUTOR: No, Judge.
35 JUDGE: Before the court shall then continue to read or have
the prosecution read the charge sheet, the court shall rise and the court orderly to read to us the Code of Conduct.
(Court Orderly reads Code of Conduct)
JUDGE: Thank you. The court may be seated. Madam
5 Prosecutor, you may then commence to read the charge sheet.
PROSECUTOR: As the court pleases.
(Prosecutor reads charge sheet)
PROSECUTOR: Signed on behalf of the senior prosecution counsel,
Legsato, Thaba Tshwane, on 28 January 2001. We seek leave to hand in the
10 documents. As the court pleases.
JUDGE: Colonel Phiri, did you hear the charges?
ACCUSED: Yes, Judge.
JUDGE: Do you understand the charges?
ACCUSED: Very well, Judge.
15 JUDGE: Colonel Simalane, are these the charges that you've
consulted with your client on?
DEFENCE: Yes, Judge.
JUDGE: Is there any objection to the jurisdiction of the court, or
to the charge sheet itself on the grounds that none of the sections quoted here
20 actually are offences?
DEFENCE: I couldn't follow the question, Jude.
JUDGE: Is the object... let me first ask you. is there any objection
to the charge sheet, to the jurisdiction of the court?
DEFENCE: No.
25 JUDGE: Second question then is, is there an objection to the
charge sheet that it is bad in law, specifically then that there is no such offences such as is described in the charge sheet?
DEFENCE: No.
JUDGE: Not? Thank you, Colonel Phiri, yc_: are then required to
30 indicate to the court, to each and every one of the charges separately how you
intend to plead.
PLEA PROCEDURE:
JUDGE: The first charge relates to 6 February 2001, using
insubordinate or insulting language in contravention of section 17 MDC whereby 35 you would have told Colonel Kleynhans that you did not agree with the way he
did his work, and told him ... or said ... or replied to the said Colonel "I am fucking telling you that", how do you plead?
ACCUSED: Not guilty.
JUDGE: The alternative thereto, on the exact same fact is a
5 charge under section 46 MDC, how do you plead?
ACCUSED: Not guilty, Judge.
JUDGE: The 2nd alternative to the first charge, also on the same
facts is a contravention of section 45(a) MDC where such conduct would be riotous or unseemly, how do you plead?
10 ACCUSED: JUDGE: Not guilty, Judge.
The second charge relates to criminal .. the common
offence ... the common law offence of crimen injuria that on that same day, 6
February you said to Colonel Kleynhans that he's a racist and that you hate
racists with the intention to impair his dignity and which words also, according to
15 the charge sheet did impair his dignity. How do you plead to this second
charge?
ACCUSED: Not guilty, Judge.
JUDGE: The alternative thereto, under section 17 MDC is that by
saying such words to Colonel Kleynhans your conduct would have been 20 threatening or insubordinate, or insulting. How do you plead to this first
alternative?
ACCUSED: ... (unclear) ..., Judge.
JUDGE: The second alternative is under section 46 MDC that
saying such words to Colonel Kleynhans would be to the prejudice of military discipline. How do you plead to the second alternative?
ACCUSED: Not guilty, Judge.
JUDGE: And there's also a third alternative that by saying to
Colonel Kleynhans that he was a racist your conduct would, under section 45 MDC amount to unseemly or riotous behaviour. How do you plead to the third 30 alternative?
ACCUSED: Not guilty, Judge.
JUDGE: The third charge relates to also 6 March under ... and
the charge is under section 14(b) MDC which absence without leave whereby you are charged with having ... without good and sufficient cause ... well that's 35 the way its framed, that you would have unlawfully and intentionally or
negligently failed to appear at a place of duty being the Army College for a feedback session on the inspector general enquiry. How do you plead to this allegation of absence?
ACCUSED: Judge, if you could ... (unclear) ... the court I'm not guilty
5 to all the charges ... (unclear) ...
JUDGE: Colonel? DEFENCE: JUDGE: Thank you. Is that in accordance with your instructions, -
Ja, the plea is according to my instructions.
Thank you very much. Colonel Phiri. you may be seated
10 next to your defending counsel.
ACCUSED: Thank you, Judge.
JUDGE:the
Could I just have one moment before I give you floor? Yes, Colonel Simalane, you have something to share with the court? DEFENCE: Yes, Judge, I was asking for an opportunity to consult
15 with Colonel Phiri on the implications of the verdict, on the request for
postponement.
JUDGE: Before we ... before I ... (unclear) ... consider that
application for a remand. Madam Prosecutor, are you in a position to call any witnesses at this stage as we stand, or sit down?
?0 PROSECUTOR: Judge, witnesses are a phone call a.vay, but they would
obviously have to get here, I suspect that I could have the first witness here within 1/2 hour due to the type of case it has been ... they have been on standby. JUDGE:
Yes. No, I fully understand an appreciate your
position. Very well, the time then now is 14:16, we shall stand down until shall we say 14:45 which gives you + 1/2 hour to make the necessary arrangements? Would that suffice for you to deliberate with your client?
DEFENCE: Not exactly sufficient, we're looking at about 45 minutes
to an hour.
JUDGE: Right, then 45 minutes it will be. At 15:00 the court will
30 reconvene.
DEFENCE: Mm.
PROSECUTOR: As the court pleases.
DEFENCE: Thank you, Mr Court Orderly. Thank you, Colonel Phiri,
you may withdraw. The time now is 14:17; the tape will be stopped.
35 (Court adjourns)
(Court re-opens)
JUDGE: In the matter of S v Phiri, the time now is 15:10 on 25
February 2004. Colonel Simalane, you have taken instructions from your client. Is that correct?
5 DEFENCE: Yes, Judge.
JUDGE: Thank you very much. Madam Prosecutor?
PROSECUTOR: Yes, Judge, in lieu of the indication that we got in
chambers previously I just wish to place on record that the first state witness,
Colonel Drost will not be called today, but tomorrow morning at 08:00 as agreed
10 upon and that Lieutenant Colonel ... sorry, full Colonel now, Lentsoe, the second prosecution witness will also be called tomorrow to testify. As the court pleases. JUDGE: Right. Before then ... before we then proceed to the state where the witnesses are formally called the procedure makes provision for formal admissions to be made by the defence should there be any. Can the
15 defence indicate, would you be in a position to tell the court, are there any formal
admissions that you wish to place on record?
DEFENCE: Judge, there are no formal admissions at this stage ...
(unclear) ...
JUDGE: Thank you. Would the defen... would the prosecution
want to make any formal admissions in favour of the defence?
PROSECUTOR: No, Judge.
JUDGE: Right. Then I will require from the prosecution to deliver
an opening address indicating to the court, you've now mentioned the names of the two first witnesses to be called, if you can just identify the third witness and give us a short synopsis of what we could expect from these witnesses. PROSECUTOR: As the court pleases, Judge.
OPENING ADDRESS BY THE PROSECUTION
PROSECUTOR: The prosecution will call a total of three witnesses to
30 prove the charges contained as in the charge sheet. The first witness as alluded to in the first charge is a Colonel - Kleynhans, this is the witness who has previously been mentioned to this court who is presently in Nigeria, he will be
available to this court between 8 and 26 March, and as said he will testify only to the first charge. Sorry, the first and the second charge. With regard to the third 35 charge the evidence of Colonel Drost who will be the first state witness will be
led. He will also give background information on the fourth and fifth charges, and will give evidence ... direct evidence on the sixth and seventh charges. Colonel Lentsoe the final state witness, the third state witness who will be called second in line, if I may put it that way, in other words prosecution intends to call
5 Colonel Drost first, Colonel Lentsoe second and Colonel Kleynhans third who will testify to the fourth and fifth charges, and will also support the first charge, the second and the sixth charge ... sorry, oh, did I mention the seventh charge, Colonel Drost will testify on the seventh charge, and Colonel Lentsoe will support on the seventh charge.
10 JUDGE: Lentsou? Len...?
PROSECUTOR: Tsoe.
JUDGE: Thank you. Thanks.
PROSECUTOR: Thank you, Judge.
JUDGE: Would the defence want to make en opening address?
15 DEFENCE: (No reply).
JUDGE: Not required of the defence but if you would like to, you
may.
DEFENCE: No, we're not making an opening address, Judge.
JUDGE: Thank you. Documents admissib'e by mere procuction
20 from the side of the state?
PROSECUTOR: No, Judge.
JUDGE: Statements by the accused?
PROSECUTOR: No, Judge.
JUDGE: Very well, we've reached the stage where the first
witnesses would be called by the prosecution, this matter shall then stand down as per agreement, until tomorrow morning at 08:00 at whigh time I understand Colonel Drost to be the first witness?
PROSECUTOR: That is so. Thank you, Judge, as the court pleases
JUDGE: Thank you.
30 DEFENCE: . Thank you.
JUDGE:'l bid you a good evening, the tape v. it be stopped: The
time now is 15:15, the accused may withdraw. Thank you, Mr Court Orderly
(Court adjourns)
35 (Court re-opens)
JUDGE: In the matter of the S v Phiri, the time now is 08:06 on 26
February 2004. The first witness for the prosecution has been called to the stand, Colonel Drost, is that correct?
DROST: That's correct.
5
CASE FOR THE PROSECUTION
WITNESS NUMBER 1 : 76532951 PE : COLONEL : EDWARD FRANS DROST (Hereinafter referred to as "DROST") GIVES EVIDENCE UNDER OATH
JUDGE: Thank you, you may be seated behind the microphone.
10 DROST: Thank you.
JUDGE: Thank you. Madam Prosecutor?
PROSECUTOR: Thank you, Judge, as the court pleases.
EXAMINATION IN CHIEF:
15 PROSECUTOR: Thank you, Colonel, and your patience with this court is
appreciated. Colonel, where do you work currently? You've already identified yourself to the court. Where do you currently work?
DROST: I'm currently a Project Officer at Army HQ, at the HR
Section.
PROSECUTOR: Okay. And where were you working during March
2001?
DROST: I then was the acting commandant of the S A Army
College.
PROSECUTOR: Okay. Do you know the accused here present in court
25 today?
DROST: Yes, I do.
PROSECUTOR: How do you know him, Colonel?
DROST: Colonel Phiri was one of the learners that were on
course with us at the college, he was one of the JCSD students.
30. PROSECUTOR: Okay. Now, on just as a matter of format, when a
student is at the college and just generally speaking in broad terms, what is expected of him time-wise, what time should he be at the college and what time is he allowed to leave, where does he live, that sort of thing?
DROST: Okay, there's a Unit Part 1 Order thas stipulates working
35 hours throughout, it says the following that you have to be at work at 07:45. The
students actually also have their own time schedule, sometimes they arrive early on course and they have their own things that they do before hours, but official 07:45 up until 16:15 is the official working hours. It is expected of anybody to stay at work and to do his work on a daily basis, if you want leave for some or
5 other activity there's a specific format and a specific procedure which you have to go through. If you are a normal working member you ask your superior and he will then say yes or no, or whatever the case may be. If you are a student on course you will normally either go to the chief instructor and ask him permission to leave, or the course leader if you need to leave early, or you write a letter if
10 you know prior to when you want to leave, let's say you want to leave within two days you can write a formal letter and say "I need to be excused" at that specific day.
PROSECUTOR: And would that be so then for the JCSD course also?
DROST: For sure, for sure.
15 PROSECUTOR: I just want to confirm this, JCSD stands for?
DROST: Junior Command and Staff Duties course.
PROSECUTOR: Thank you, Colonel. Now if a student was to come in
earlier, it sounds from what you have just told the court that he would cet that sort of instruction from the student leader or some sort of body who is in control
20 of the students?
DROST: Positively, that is their own internal student arrangement
that they make, and which they conform to.
PROSECUTOR: Okay,_ Now ...
DEFENCE: Judge, may ... can I just object ...
25 JUDGE: Yes.
DEFENCE: ... I just want to indicate to ... (uncles objection
JUDGE: Yes?
DEFENCE: ... Judge, which we would like to place on record (1) is
that prosecution counsel must not, in our submission, no objection, lead the
30 witness. (2) The witness must testify and .in relation to the charges for which he
.......
has been identified to be a witness: It must be clear as to which charges v.e are dealing with in his evidence and I would presume an indication would s_iffice from counsel to say, the member has been charged of this and you are the witness in that regard, could you tell thecourt what's all about insofar as he has
35 contravened this. The general statements- and terms on the JSD and where the
college is located perhaps counsel would have, in his (her) opening statement briefed the court that, you know, the case relates to events that took place at such a place and you know and this is a college, but we expect from the side of defence that when a witness is called and is on record that he's going to testify
5 on certain charges that he testified on that, that is our objection, Judge.
JUDGE: You don't need to answer.
PROSECUTOR: As the court pleases, Judge.
JUDGE: You don't need to answer.
PROSECUTOR: I would like to answer, Judge,
10 JUDGE: Thank you, I won't give you an opportunity. In respect of
leading questions whereby you do say to the witness I assume, or I presume or is that then correct may then lead to a leading statement to a witness, quite correct. Secondly, the second aspect is denied there is no such instance as that there is an obligation upon the prosecutor to only lead her or his witnesses in
15 respect of certain charges, specifically the first witness in the case, and specifically at the start of his evidence certain background information may be extracted from such a witness to place the court in a position to understand the proceedings, or the events rather, against a certain background, so I will allow that under the circumstances. Please proceed.
20 PROSECUTOR: Thank you, Judge, as the court se pleases, I was in any
event going to move on to the incident at hand before this court today. Colonel, it is alleged that on 7 March 2001 there was an incident where you were involved and where the accused was involved, can you tell the court about that incident please?
25 DROST: This incident on 7 March took place at more or less plus
12:00/12:45 where I had Colonel Phiri on office orders to c.ve him feedback and to inform him with regard to what was happening to an incident between himself and Colonel Kleynhans so the idea was to give him feedback and to say to him "this is where we stand with regard to the system, and the whole incident that
30 happened and this is what I am going to do."
PROSECUTOR: Sorry, Colonel, where was this ... where were the orders
held and who was present?
DROST: Okay. At that specific time I had a double-hat
appointment, I was the acting commandant and I was also tne chief instructor at
35 the Senior Command and Staff Duties branch, so these orders took place in my
office at the chief instructor's office of the senior command and staff duties branch and the person who joined me there was Colonel Raymond Lentsoe who was the course of the JCSD branch so he brought Colonel Phiri in on orders and ... I do not know, do you want me to carry on with the whole incident?
5 PROSECUTOR: Yes, please carry on.
DROST: Okay.
PROSECUTOR: I'll stop you if I need specific points from you.
DROST: Okay. So at 12:45 Colonel Phiri finally pitched up and
then we decided now is the order time. So Colonel Phiri was marching in in the
10 orders, he marched in, he halted, made a left-turn and immediately he came to a st... he immediately went and stood at ease. I then said to him this is a formal office bearing so he had to stand at attention.
PROSECUTOR: Okay, when you say "formal office bearing", what are the
usual drills?
15 DROST: The usual drills is a guy marches in neatly, he makes a
left-turn and he stands there and he salutes, in his case as en officer he salutes and then he stands at attention and then the whole office bearing is finalised, he salutes, he makes a left-turn and he marches out of the office once again. PROSECUTOR: Okay. So are there any other positions that the attention
20 that you mention?
DROST: No, there's no other positions.
PROSECUTOR: Okay. Please continue, Colonel.
DROST: Okay. Then after I reprimanded him to stand at
attention he physically showed his displeasure by staying at attention but looking 25 up in the air, rolling his eyes and I got the idea that he was highly agitated with
what was happening at that specific ... or in that office.
PROSECUTOR: Sorry, Colonel, just for the court to have information,
when somebody stands at attention, what is required of his body ... or how should his body look?
30 JUDGE: The court takes ... (unclear) ... standing at attention
means•in the military. Thank you, you may proceed.
DROST: Okay. Righto, I then asked him whe-e he was on the 6th
and on the 7th because he was supposed to be at work and I was supposed to give him feedback already on the 6th and on the morning of the 7th as this was 35 already at 12:45. He then refused to answer me initially, and then again I asked
him, "Colonel, where were you on 6 March", the next moment he said to me, "go ask my lawyer." I said "Colonel, where were you on 7 March, the morning", "go ask my lawyer", so I was a bit taken aback by these comments that he made and I saw that we were going nowhere with regard to this question, so I then gave
5 him a formal order to write me a statement, or a paper telling me where he was and he had to hand that paper in at 08:00 the next morning on the 8th. I then proceeded by informing him that I have received both Colonel Kleynhans' incident report which I also provided to him,
JUDGE: Sorry, could you just repeat that, you ..?
10 DROST: I have received Colonel Kleynhans' incident report ...
JUDGE: Yes?
DROST: ... which I went through and I also received his incident
report after responding to Colonel Kleynhans' incident report, and that I've read
through it and that I was then going to convene a commander's 'investigation
15 because I could not make a decision on who is right and who is wrong, and that he then had to report to Colonel David Mazunganya 1 3:30 to do the commander's investigation that day. I then asked him to read through the paper, the incident report that I had, or the orders report that I had in front of me and to sign it, he then flatly refused to sign it and in the word of "I won't, I won't". I have
20 asked him twice to read through the report and confirm it, and he said he would not do so. Then I asked him and I said, "Please, Colonel, you are a colonel I address you by rank 10 think it's proper for you to address me by my rank as well" and then the next moment there was a ... like the marine corps guys go, and he said "Yes, Colonel" and he was shouting at me whenever I asked him,
25 "Yes, Colonel" or whatever the case may be.
PROSECUTOR: What was your impression of that?
DROST: Jis, I was strictly taken aback, I could not believe what
was happening here in front of me, .1 thought it was totally out of line for a senior
officer to react in that specific way. I then asked him ... or I then excused him as
3.0 well from my office. The next moment he asked me what happened ... or if I received the document, or the redress of wrongs that he forwarded to me against General Mashuala. I said to him, "Colonel, no, this is not the time to discuss that now, this is formal office orders we can discuss that later", he did not want to leave the office, I then again said to him "Colonel, you are excused",
35 he did not leave the office. The third time I said to him, -Colonel, you are
excused" finally he made a left-turn, he marched off to the door, suddenly he stopped, he halted, he saluted towards the door and he looked to me and he said, "Colonel, salute me, Colonel, salute me. Oh! You don't want to salute me" and shoops down the corridor he went. Stood there in total amazement, and
5 when he was down the corridor I said to Raymond Lentsoe, "just confirm, I
saluted and he was off", and that is what happened on that specific day.
PROSECUTOR: Okay. If you were to give a label to Colonel Phiri's
attitude to you on that day, what would you call it, how would you label it?
DROST: Well, he was totally un-disciplined to my opinion, and he
10 was actually ... well, I got the idea, and I felt that he was challenging authority from the minute he stepped into that office, and that only ... or that feeling was aggravated as we carried on.
PROSECUTOR: Okay. Now I want to take you back one day to the
feedback session and the inspector general enquiry, who was present at the
15 inspector general feedback session?
DROST: Okay, the inspector general feedback session took place
on the 6th at 15:00, all the DS's and the chief instructor, and the course leader as well as all the students were supposed to be there, and I was also attending that specific feedback session.
20 PROSECUTOR: Okay. Now if you could just give the court a
background, how did it come that there was this feedback session?
DROST: Okay. ..Okay, it's actually a long stet;, there was a lot of
call it politic bickering between the students, and those type of things, there were
allegations made that the Mufassa, who is the course cha"-nan made political
25 speeches and all those type of activities as well. And then t'ere was a ... I think it was a Swedish visit where they once again said that tne Mufassa made political speeches, and finally it was with regard to the final f...-otion of the mobile phase where the Mufassa once again made certain statements which, according to some of the people, were not in line. I was informed abo_t this by Lieutenant
30 Colonel Lentsoe and I then said "well, I'm not going to try and investigate this whole matter" so what I did is I phoned the then training for—ation commander, General Stein and I said to him "please come and investigate :ne allegations that is made here, I think it is out of the college's authority to do tnat specifically. and we need ... what is "onafhanklike?"
35 PROSECUTOR: Independent.
DROST: ... independent opinion about this whole thing. What
happened then was the inspector general was appointed to do the investigation.
They did the investigation, they finalised the investigation and they were then
ordered by, I assume, Chief of the Army to give feedback to the students with
5 regard to the findings of that board, and that happened on the 6th at 15:00.
PROSECUTOR: Alright. Was Colonel Phiri present?
DROST: No, he was not present.
PROSECUTOR: Was he required to be present?
DROST: Ja, I think he was required to be present.
10 PROSECUTOR: You think?
DROST: No, he
JUDGE: Right, to ascertain, were you present at that session
yourself?
DROST: Yes, I was present there, ja.
15 JUDGE: Thank you.
DROST: He was definitely required to be there, ja. All the
students had to be there.
PROSECUTOR: Alright. And do you know of any reason that he was not
there?
20 DROST: Well, I later received his document where he stated the
reason why he was not there. Now if I can ...
PROSECUTOR: Okay, now ... sorry, Colonel, this is now the letter that
you refer to, or the statement that you required the feedback on the previous two days ...
25 DROST: That's positively, ja.
PROSECUTOR: Okay.
DROST:
PROSECUTOR: Alright.
DROST: And in that document he said that, if I can remember
30 correctly, that h e had an arrangement with Colonel Lentsoe for 15:00 that afternoon, but that he was writing some or other document and that he overstepped the time, and that he then directly went to Chief of the Army to hand his side, or his response to certain documents as well.
PROSECUTOR: Okay. This feedback that you received, Colonel, you
35 earlier testified that you required that feedback on 8 March, at what time was it
again?
DROST: I had to have it by 08:00 on 8 March, I did not receive it
at the 8th, I received it somewhere through the day. I can't exactly remember the time that I received it, but I did not receive it 08:00 that morning.
5 PROSECUTOR: Okay. If the court can just bear with me for two
seconds? Is there anything else that you want to tell the court regarding this incident?
DROST: I think what is important is just to understand the context
as well of the whole thing. The whole story started off on 2 March where I
10 actually had Colonel Phiri on office orders after receiving the incident report of Colonel Kleynhans. When I got him on office orders I said to him, "here is the incident report and the statement written by Colonel Kleynhans which is vital because it accuses you of certain things."
PROSECUTOR: Uhuh?
15 DROST: So to give him a fair chance to react to that as well, I
asked hiM "go through this document and then on Monday 08:00 provide me with your side of the story as well." Once again, on Monday 08:00 he did not provide me with the document, and I also received the document later that day only. Then I started, and I asked that he come on office orders on the 6th which I
20 think it was more or less 12:00 where I asked the first ',Me that he appears before me on office orders so that I can inform him of what is going to happen after the commander's investicatioft he was not available. Then I said to Colonel Lentsoe "you've got leeway through the day, go get him and whenever he's available let him come" and I never saw him on the 6'. On the 7th I had a
25 communication period with my students, my own senior students that morning, and directly thereafter I once again phoned and I said, "is Cc'cnel Ph i available" and he once more was not available. The first time that I say Colonel Phiri
PROSECUTOR: Sorry. When you phoned you spoke td?
DROST: I spoke to ... I think it was Colonel Le-tsoe. J. The first
30 time that he was available for office orders was more or less ... I think it was
12:45 that I saw him, but more or less in that vicinity; so this thing actually dragged on from the previous Friday up until the Wednesday.
PROSECUTOR: Thank you very much, Colonel.
DROST: Thank you.
35 PROSECUTOR: Thank you for your time. Thank you, Judge, I've no
further questions.
JUDGE: Defence?
DEFENCE: Judge, as indicated yesterday the defence will reserve
cross-examination so that at the appropriate time when certain documents are
5 available such investigations ... such cross-examination will be done. I can indicate to the court that instructions have been given and that are being worked on by the relevant attorneys to work towards the High Court motion.
JUDGE: But I confirm, as between the postponement yesterday
afternoon at early afternoon, before I think 15:00 still and this morning has any
10 such an application to the High Court been lodged?
DEFENCE: The ... Judge, we're in the courses of taking instructions,
we ... there were consultations that took place yesterday between the member and a certain firm of attorneys, I've got the business card here, it's Ramotwala, ... (unclear) ... Incorporated and ...
15 JUDGE: Is there a telephone number?
DEFENCE: The telephone number is available, It's 012 for Pretoria,
3234824.
JUDGE: And the attorney of record?
DEFENCE: fVlafora Daniel Ramotwala.
20 JUDGE: Himself?
DEFENCE: Yes, it is Mr Ramotwala himself ...
JUDGE: Excellent. Thank you.
DEFENCE: Yes, the ... i also had consultations on ... as instructed
by client with the Legal Resources Centre.
25 JUDGE: Mm.
DEFENCE: And arising from that consultations the open democracy
of South Africa was brought into play(?) and as ... after adjournments today I will
get in contact with the lawyers of the Open Democracy Centre and Ramotwala
to streamline those kind 'of instructions to get the documents which are
30 necessary for this case, which include the investigating report which the court
has heard about, the accused's report.
JUDGE: Thank you. Madam Prosecutor?
PROSECUTOR: Yes, Judge, prosecution wishes to place on record that
we object to defence not leading cross-examination at this stage and specifically 35 with regards to the examination in chief which is already placed before this court
Sufficient time and documentation has been placed in the possession of the defence, the defence team in order for them to prepare for cross-examination of this witness in his examination in chief as tendered before this court. I would therefore request that the court order defence to commence with cross-
5 examination of the witness and that should there be cross-examination with regards to the documents that defence seeks to obtain, that they then reserve their right to cross-examine the witness with regard to those documents only then at that stage. As the court pleases.
JUDGE: Any remarks to that?
10 DEFENCE: Yes, Judge, they would be very short remarks. The
remarks in this line that defence ... defence counsel conduct their own case and not the prosecution's case, that the defence in the interests of the accused member and with regard ... with ... in consideration also to the accused member's constitutional rights him being afforded the relevant opportunity to
15 prepare his defence that is in accordance with those rights and that would be his
cross-examination is reserved so that the ...
JUDGE: Just one moment, for the helicopter to pass.
DEFENCE: Yes.
JUDGE: Thank you.
20 DEFENCE: Yes. The essence of the response, Judge, is the
constitutional rights of the defence, the accused to prepare his defence and to have all the documents he wants, he requires to do that. And that the cross-examination is reserved in entirety at in the interest of the member and in the discretion of defence counsel as to how it will be conducted. It is not for the prosecution counsel to dictate how the defence must conduct its case. This is our submission, Judge.
JUDGE: Thank you very much. The count will stand down to
consider the application. The timeinow is 08:33, 10:30, of tea we will make
known our finding whether a postponement be oranteO to allow the High
30 Court application to proceed before cross-examination should take place, or
whether cross-examination shall take place irrespective of whether there is an application to the High Court. Colonel Drost, you may stand down, if you could
be available then at 10:30. Thank you very much. DROST: Will be, Judge.
JUDGE: Thank you, Kolonel. Kolonel? Kaptein? The time then
is 08:34 and the tape is to be stopped.
(Court closes to consider application)
(End of tape 3)
5 (Transcription continues on tape 4)
(Court re-opens)
FINDING
JUDGE: Regarding the instruction that Colonel Phiri supplied to
10 his defence counsel not to continue with cross-examination in this matter pending an application to the High Court, or an order to release certain documentation that they would require for cross-examination of this witness, and the following I find of relevance. In the matter of the S v Strowitzki, 1995 (1), SALR 414, a Namibian case the following was said and I quote:
15 "It is clear that the court leaned heavily against allowing
inter loquitra appeal in criminal cases ..."
... as long ago as 1917, the reason for this was given by ,Tztclge Gregorowski in the matter McComb v ARM Johannesburg and the Attorney General, 1917, Transvaal Division TPD 717 at page 718 as follows, and I quote:
20 "The idea of a trial is that it should as much as possible
con ... I repeat, the idea of a trial is that it should be as much as possible be continuous, and that it should not be stopped. if this kind of procedure were to be allowed it would mean that a trial may become protracted and
25 make extend over a number of months, the magistrate would sit on one day and hear part of the evidence of a witness, then the hearing would have to be postponed till the opinion of the Supreme Court could be taken perhaps a month or two later, thereafter the trial would
30 again be continued and after some months... I repat after some months and immediately it is resumed objection may again be raised in connection with some evidence with an application again to the Supreme Court and again back to the magistrate. I think that would produce an intolerable condition of things. I do not say
the court may never interfere in the course of a trial before the magistrate, there may be misconduct on the part of the magistrate or something of that kind, but when a case comes before a magistrate I think he must
5 use his discretion and give his decision."
That then what was said by Judge Gregorowski. Judge Hannah who presided in the matter of S v Strovvitzki then continued and says:
"This approach has been reiterated time and again over the years, for example, in the matter of Wahlhaus and Others v the Additional
10 Magistrate Johannesburg and Another, 1959 (3), SALR 113, an Appellate Division case where Ogilby Thompson, Judge Appellate at the time said at page 119, paragraph (e):
"The practical effect of entertaining an appellant's
partition would be to bring the magistrate's decision
15 under appeal at the present un-concluded stage of the criminal proceedings against them in the magistrate's court. No statutory provision exists directing sanctioning such a course, not even if the preliminary points decided against the accused by a magistrate be fundamental to the accused's guilt will a superior court order ordinarily interfere whether by way of appeal or by way of review before a conviction has taken place in the inferior court."
He then closes the quote from the F,ralhaL• case and continues then at 120(b)
the learned judge of appeal went on to approve the following statement in
25 Gardner and LCInSC-10111n, Sixth Edition, (1) at page 715. I quote:
"While a superior court having jurisdiction in review or
appeal will be slow to exercise any power, whether by a
mandaus or otherv.ise upon the unterminated course of
m proceeding§ in a court below it certainly haS the power
"2,0 to do so, and will dc so ... I repeat, and will do so in rare cases where grave injustice.. might. otherwise result or where justice might not by any other means be attained. In general, however. it will hesitate to interfere especially having regards to the effect of. such a. procedure upon
35 the continuity of proceedings in the court below it, and to
the fact that redress by means of review or appeal will ordinarily be available."
That then in respect of what I wish to point out of the case of Strowitzki. I move
on, and I wish to refer to the matter of the S v Attorney General of the Western Cape
5 and S v the Regional Magistrate, Wynberg not ... I repeat the reference is incorrect, not the state, it's S v Attorney General of the Western Cape and S v the Regional Magistrate, Wynbeg and Another, 1999 (2) SALR 13, a Cape Provincial Division case. I quote:
"This cases raises the question whether given the
10 circumstances of the matter a review is competent in respect of the aforementioned inter loquitra order made the magistrate, or whether it should await the final conclusion of the case. The leading case in this respect is Wo/haus & Others with the additional Magistrate Johannesburg and Another, 1959 (3) SALR 113, an Appellate Division case where the Appellate Division lays
15 down the general rule that ordinarily there should not be inter loquitra appeals
and reviews before finalisation of the criminal trial. In the course of his judgement Ogilby Thompson, Judge Appellate as he then was, said the following at page 119, paragraphs (d) to 120 (a) and I quote:
"If an appellant's contends the magistrate erred in
20 dismissing the exception and objection to the charge his error was that in the performance of his statutory functions he gave a wrong decision, the normal remedy against a wrong decision of that kind is to appeal after conviction. The practical effect of entertaining the
25 appellant's partition would bring to the magistrate's decision under appeal at the present un-concluded stage of the criminal proceedings against him in the magistrate's court. No statutory provision exists directing sanctioning such a course nor, even if the
30 preliminary point decided against the accused by a magistrate be fundamental to the accused's guilt will a superior court ordinarily interfere, whether by way of appeal cr by way of review before a conviction has taken place in the inferior court."
8
I also wish to draw your attention to the matter of Lombard and another Esteerhuizen and Another 1993 (2) SALR 566, a Witwatersrand Decision for your discussions of the same principle. In this matter of S v Phiri the decision by Colonel P R Venter stands, after he had listened to the evidence specifically
5 brought before the court by way of the accused himself testifying, and he has heard arguments about the required information requested by the defence. I do not intend re-deciding that issue, what I do find of importance in the decision of Colonel P R Venter is that the accused seems to be well positioned to challenger the allegations in the charge sheet by virtue of his personal knowledge of the
10 events at the army college. He further has the option of calling witnesses to substantiate his version of the events, he has the right to cross-examine state witnesses and put his version to them. I again considered the nature of the charges, that is specifically that they are not technical in nature that would typically require documentation to be placed before the court in the form of either
15 expert witness or in the form of official documentation of the National Defence Force to prove or disprove the actual commission of the offence, such as orders that were not committed, fraud that may been committed in respect of subsistence in travelling, or leave, alteration of leave documentation, or official authority for absence from work, et cetera. Rather the conduct complained of are
:0 of simple occurrences and the question in the instance would be did they occur, or not. As I understand from the defence the documentation that is required is not so much to contest the octus reaos(?) in any of the instances complained of by the state but would rather be utilised to show the victimisation. Given the circumstances described by the accused in his evidence before Colonel P R Venter, it appears that he should have plenty of witnesses whom he can call to substantiate such an allegation and that therefore he cou:d use such witnesses to the same effect that he intends to put the documents to use for. I fail to see why this court should be held up so a High Court application can be made to obtain documents that had already been ruled are not required for the defence's
30 defence. Furthermore, it woucl appear to me that the accused's prospect of success in such an application, given the authority I referred to above, is extremely thin. I therefore again will not postpone the matter pending a High Court application such as envisaged by the defence. Cross-examination is available to the accused. Colonel Phiri, should you not make use of this
35 opportunity to cross-examine the witness the possibility exists that the tender ...
that the evidence tendered by this witness may in it's un-contested form constitute prima facie evidence of the elements he testified about, and may eventually be accepted as sufficient proof, note that in the case of S v van As, 1991 (2), SALR 74, a Witwatersrand Decision, the court had the following to say
5 about failing to cross-examine inter cilia:
"It is a cornerstone of the administration of justice in South Africa and elsewhere that counsel should put his case to the witnesses for the other side, where, as in the present case the accused's version has given in his
10 evidence is that the particular state witness has committed perjury and that there was a fabrication of evidence by such witness, it follows from the decided cases that in appropriate case an inference must be drawn against the accused where his counsel has not
15 put the relevant question to the witness concerned. The inference is inevitable that the accused when the cross-examination of the state witness in question was taking place, did not dispute the particular point and that he charged his version thereafter when testifying."
20 This court will not stand down to a ow time for the defence to first approach the
High Court in the applicaticn envisaged by the defence, and that this shall continue. Colonel Simalane, if you now wish for this matter to stand down for 15 minutes so that you may take fresh instructions from Colonel Phiri, you may do so. Do you so wish to take fresh instructions?
DEFENCE: No, my ... I have instructions already, they are new
instructions.
JUDGE: Thank you. Right, then I once again afford the defence
the opportunity to cross-examine the first state witness.
DEFENCE: Judge my instructions still stand that we reserve the
30 cross-examination of this witness Until such time that the relevant records are
obtained. In view of the court's judgement now on this issue. and ...
JUDGE: Yes? You may continue.
DEFENCE: In view of the judgement as I've heard it, it would appear
that there is a need for an urgent application to the High-Court, and we will need
the assistance of this court in getting the transcripts because the for the
urgency ... to establish the urgency of this matter we should be able to relate to the present decision that the matter of this application we want to bring be on an urgent basis. It is not my intention to address the court on the verdict, of course yes, ... (unclear) not on appeal. But it becomes apparent to me, because the
5 question of the nature of the application to be brought whether it would be urgent, or in the normal course the nature thereof it's become apparent that this application will have to be on an urgent basis and the urgency will be established by the record of proceedings of today. And I'm asking the assistance of the court on the basis that to experience and through the certain administrative
10 orders I'm aware of from the Directorate of Judicial Reviews here at the SANDF that the records before the conclusion of the trial would not be made available, and if it ... unless it's required by the court or it's at the court's instruction, if it's required by the member it must be the member's expense. It is that point of view that I'm ... in fact I'm requesting the court's assistance in fact to get this
15 transcript, in fact the whole transcript from the 27th of last month when Colonel Colby recused herself and the recent proceedings that we have had, these transcripts will be useful to us, to the member, to the accused in his pre... in his application to the High Court. Of course more importantly the pronouncement of today by the judge that they would appear they ... (unclear) ... they will address
20 the issues of urgency. Ja, there are distinctions, I'm aware of the ... (unclear) ... which the court has just mentioned and even that T'T/C77::11,5' case that the court has mentioned we were aware that the ... but what the judges were saying there, which the court mentioned in terms of you know it's not just a point which one can deal with on the question of there's a point ... (unclear) ... is appealing ...
25 (unclear) ... In this case were dealing with a case of grave injustice. This case
of this member has moved to the ... particularly of grave injustice, it's not a matter that could be dealt with by even appeal or review for more tnan one reason. From the evidence as we understood it from the witness, he ...
JUDGE: May I? You said you did riot want to discuss the
30 decision and ...
DEFENCE: Yes, Judge,.thanks
JUDGE: ... but you are actually going to 0: that now I see.
DEFENCE: Okay, I'll rephrase. I'll rephrase. I can only ask the
court's assistance for the records I've mentioned since the Colonel Colby's court
35 to the present court, if these records can be obtained at the direction of the
court, and they will assist us as part of the instructions in this urgent application ... (unclear) ...
JUDGE: There is provision made for records to be transcribed
and made available to a person requiring them for whatever purpose at the
5 prescribed rate in the MDC, so if ... certainly, you require them for this application I see no reason why ... of why you cannot make use of that procedure. If I'm not mistaken the request must be made to the GEOIC of Legsato, Thaba Tshwane who shall then issue the necessary instructions in that regard. I certainly do not require them for myself, and seeing it ... as there is
10 another procedure available whereby you can request such, I feel it unnecessary
to make that an order of the court.
DEFENCE: You know, it's granted, really, Judge, we are asking the
kind of direction from the court to obviate the question of cost, is ... the court is
aware the member is burdened with heavy costs and the nature of the
15 application that he's bringing and we thought that if the court was to meet the
member halfway, those costs would be obviated.
JUDGE: Right, ...
DEFENCE: That is the nature of the request. really.
JUDGE: I fully appreciate your request. I must however repeat
20 that the decision is not mine to make. The instruction received from the adjutant general was clear that matters to be transcribed would. in the normal course of events, ... normal course of events I repeat, the plea ... the findings of guilty he did however allow for other matters also to be transcribed, and without saying that this is such an instance it could be that there is ... that he would see it to
25 such a request from yourself, but as I pointed out the GEOIC of the Legsato would be the channel for you to approach in that retard. I certainly do not require it for my own purposes, or for finding in this matter ...
DEFENCE: Ye
JUDGE: Which now, if I understand was sr.nplj/ a request
30 from your side for the transcription of the proceedings u; to now?
DEFENCE:. Yes.
JUDGE: Right?
DEFENCE: Yes. We ... I presume we're z:ven no choice but the
member will have to proceed at her (his) own cost to getiiimeansoriptions.
35 The ... we will, of course, the court is aware now in terrhs of my instructions,
reserve this cross-examination and everything being equal in the nature of if we ... assuming we'll be able to go in the nature of an urgent order we should be able to have these documents at the close of the state's case. And we will ask then these witnesses to be recalled because it is important ... it's not a quiz
5 where we're saying we're not using ... I'm referring in particular to the authority of
the court quoted in the last case mentioned, this van somebody, 1991 (2) ...
JUDGE:
DEFENCE: S v van As?
Ja, this van As case, we the present member's case is
distinguishable from the van As case where the member does not use the 10 opportunity to cross-examine.
JUDGE:
DEFENCE: I beg your pardon, in the present case?
Where the member in van As case where the member ...
I'm sorry if I'm not audible, in ... where the member does not use the opportunity to cross-examine. I say, Judge, this case is distinguishable in the sense that the member wants to cross-examine this witness and he only reserved the right he has to cross-examine in order to cross-examine this member at a late:. stage. And at a later stage when presumably these documents ',,ill be available and a proper cross-examination will be conducted.
JUDGE: Alright.
DEFENCE: Thank you.
JUDGE: Let me make the court's position c ear without raking a
ruling whether you will be allowed to later cross-examine. I wish to reiterate that the opportunity now exists, and in the normal course of events this is the- where the version for the defence will be placed to the state witness, and the pcssibility exists, either way, that the witness may be recalled for late' "..;ross-examination at a later stage, it's not impossible, but the possibility also exists that the curt may refuse such an application to recall the witness. [I: you, Colone Phiri, understand that?
ACCUSED: • YeS, Judge.
30 JUDGE: Thank you.
DEFENCE:. • Thanks. I have no ... nothing furtne7 to useful to add,-
Judge.
JUDGE: No cross-examination, no re-e-amination. Any
questions that you wish to .pose to the colonel? ... (unclear) ... Any questions
QUESTIONS BY THE COURT:
JUDGE: Could I, just for my own purposes, return to the incident
where Colonel Phiri appeared before you on office orders, where you testified
that firstly he had to give you feedback formally by the next morning at 08:00
5 about his whereabouts on the previous instances, and then you went on to
testify about an OC's enquiry, if I heard you correctly, that had to be conducted.
DROST: Ja.
JUDGE: Could you just explain that to me?
DROST: Surely, Judge. What actually happened, and that is why
10 I wanted to put it into perspective from the 2nd as well. I received an incident from Colonel Kleynhans where he accused Colonel Phiri of being out of line and not adhering to certain standards, et cetera. So what happened then is after reading through that incident report I got the colonel on office bearing the Friday to spe... to give to him the copy of that specific incident so that he could read,
15 and so that he could also state his case in that specific regard. That document where he could react to the incident of Colonel Kleynhens had to be in on the Monday morning 08:00, with me. After I received both documents, as I stated I did not receive it 08:00 that morning, but I received it later in the day, after I received both ... or looked at both the documents and also Colonel Phiri's I
:0 looked at the documents and I said to myself as well, and I ... to be fair I think this has to go the way of a commander's investigation, and that is where the commander's investigation came from. I then decided that the whole case would be investigated by a commander's investigation to determine vihat route we have to go further forward, and then I got him on office tearing, or I wanted to get him on office bearing the 6th to tell him that I was going to convene tn:s commander's investigation. He was then not available and only on the 7 could I finally formally inform him that I'm acing to comene a commander's investigation with regards to this whoie issue.
JUDGE: "This v,hole issue , meaning the noident between hire
30 and Colonel Kleynhans?
DROST: And ... that's right, Judge.
JUDGE: Was such an investigation conducted?
DROST: There yes an investigation conducted then. yes, Sir-.
JUDGE: It now becomes clear, if I understand you correctly that
35 the OC's investigation ordered by yourself ...
DROST: Ja.
JUDGE: ... is separate and of a totally different topic than the IG
investigation?
DROST: That's so, Judge.
5 JUDGE: Correct. Questions arising? Madam Prosecutor?
PROSECUTOR: None, Judge, as the court pleases.
JUDGE: Defence?
DEFENCE: Yes, Judge?
JUDGE: Questions arising from the questions by the court?
10 QUESTIONS ARISING FROM QUESTIONS BY THE COURT:
DEFENCE: Well, my only question there would be was it from that
in... without cross-examining, just questions by the court that the commander's investigation was it based upon ... (unclear) ... the member was charged? DROST: That is so, ja.
15 DEFENCE: Thank you.
JUDGE:. Colonel, thank you for your evidence. You're excused
and you may stand down, you may withdraw.
DROST: Thank you, Judge.
JUDGE: Madam Prosecutor?
20 PROSECUTOR: The prosecution calls Colonel Lentsoe.
JUDGE: Good morning, Colonel.
LENTSOE: Good morning, Sir.
JUDGE: Thank you, you may be seated behind the microphone.
25 WITNESS NUMBER 2 : 94725678PE : LIEUTENANT COLONEL ADLHOLANG RAYMOND LENTSOE (Hereinafter referred to as "LENTSOE'') GIVES EVIDENCE UNDER OATH
JUDGE: Thank you. Madam Prosecutor?
PROSECUTOR: As the court pleases. Thank you, Colonel, and thank
30 you for your patience waiting for us.
EXAMINATION IN CHIEF:
PROSECUTOR: Colonel, you've already identified yourself to the court,
could you tell the court where you work?
LENTSOE: Is it now?
35 PROSECUTOR: Now.
LENTSOE: I'm currently employed at the S A Army Infantry
Formation HQ.
PROSECUTOR: And over the period of February/March 2001, where
were you working?
5 LENTSOE: At S A Army College, at the junior command and staff
branch.
PROSECUTOR: What was your position there?
LENTSOE: At some ... during that ... the period in question I was the
course leader of the then basic course, and at some stage I was the acting chief 10 instructor in the absenCe of the chief instructor who was then Colonel Kleynhans.
On completion of that I was then appointed as the senior DS.
PROSECUTOR: Okay. Colonel, do you know the accused here, present
in court today?
LENTSOE: Is that now Colonel Phiri?
15 PROSECUTOR: Is that him?
LENTSOE: Yebo, I do.
PROSECUTOR: I'm asking you. It is Colonel Phiri you say?
LENTSOE: Yes
PROSECUTOR: How do you know Colonel Phiri?
20 LENTSOE: Colonel Phiri was part of the course on which I was
appointed as the course leader which started somewhere in 2000 and vvas completed, if I'm not mistaken. on 7 March 2001.
PROSECUTOR: Okay, the type of course?
LENTSOE: Junior Command and Staff Duties course, theorY
portion, or the theory phase of it.
PROSECUTOR: Okay. Now, I want to take you ba:k to 6 February' 2001,
there was apparently an incident that you can tell the court about.
LENTSOE: That would be ... what date?
PROSECUTOR: 6 February 2001 involving the accused and Colone:
30 Kleynhans.
LENTSOE: Earlier than that there was a- incident. ,of_ .racial.
disharmony in the course which. in my opinion, splitted
JUDGE: An incident of?
LENTSOE: Racial disharmony.
35 JUDGE: Okay, thank you.
89
LENTSOE: Which in my opinion split the course in two, now the
"two" meaning whites and blacks, that during the absence of the then chief
instructor, Colonel Kleynhans. On his return, I'm not quite sure when but it was
towards the last week of the then preceding week I informed him of what
5 transpired during his absence and what my actions were, that I have consulted with the then acting commandant of the college, Colonel Drost then, and that there was an investigation underway. He then, within his mandate, decided to address the course, I believe it will be that morning of the eit' after which he opened no stage for questions and so on, and he left. Before I could leave the
10 class because I was then the course leader, I informed the officers under instruction of what will then happen in that week in terms of confirmation of the weekly programme and so on, after which Colonel Phiri indicated to me that he would like to have an appointment with the chief instructor, then I left to make the appointment for him, to prepare the file to formalise their appointment in
15 terms of being completing the necessary documentation for office orders. In his request he indicated that he would appreciate it if the course chairperson called Mufassa that was a name like a beagle, but ...
JUDGE: sorry, I didn't quite hear, the course chaplain?
LENTSOE: The course chairperson.
20 JUDGE: Oh! Chairperson?
LENTSOE: Course committee chairperson.
JUDGE: Yes?
PROSECUTOR: Nickname "Mufassa."
JUDGE: Who says it ...
LENTSOE: Mufassa. Mufassa is just like a beagle in the senior
staff. He is ... we're not referring to him as "chairperson" but as "r.lufassa."
JUDGE: Thank you.
LENTSOE: By the name of Major Matli which I indicated to Colonel
Kleynhans that the request of Colonel Phiri is to see you. nct quite sure of
30 the contents, but he would appreciate it if the course chairperson. Mufassa, can be present which he consented to. Then I went back to the lecture. room and informed Colonel Phiri that it's okay, you can then come and see the chief instructor. Then ...
JUDGE: Sorry, could I just have the .... is course, students'
35 chairperson, Major ... Lieutenant ...
LENTSOE: Matti.
JUDGE: Please refer to the people by their ranks and names if
you don't mind.
LENTSOE: • I will do so, Your Honour.
5 JUDGE: Thank you.
LENTSOE: He was at that time Major Matti there.
JUDGE: Yes?
LENTSOE: Then myself, Colonel Phiri and Major Matti we left the
classroom to the above ... or the first floor where I went to my office to fetch the
10 file in which I indicated that number, rank, name being Lieutenant Colonel Phiri, and appointment with the chief instructor Colonel Kleynhans. I didn't write anything where there's a reason ... a space for reason for their appointment, and I handed that file in at the chief instructor, then he said "no, okay, let the two gentlemen then come in", I went back, opened the door and get them in. I
15 saluted and I stood behind them, and he offered them the chairs then they sat down. And Colonel Kleynhans indicated to Colonel Phiri that he's of .,. or he's made to understand that Colonel Phiri has something that he wants to discuss with him being the chief instructor and the floor was open, and Colonel Phiri indicated to Colonel Kleynhans that he does ... he didn't like the manner in which
20 he addressed them as officers under instruction of that particular course, and more so for not allowing them to put any questions in terms of what he said to them, and so on. Then at some stage Cc!onel Kleynhans said to Colonel Phiri he must not tell him how to do his work, and from that point ... I don't have the right word, but the conversation got out of hand. At some stage Color el Phiri stood up from his chair, withdrew his beret and leaned on the table and said to
Colonel Kleynhans fucking telling you, you are a racist and then ...
JUDGE: In the manner that you've just described?
LENTSOE: Pardon, Sir?
JUDGE: in the manner the-. you've now demonstrated to the
3() court?
Lent In the manner .which ... (unclear) ... and Colonel Phiri
now ... (unclear) ... on the table. I was a few steps to the rear ...
JUDGE: Right. For record purposes it's indicated that the
witness demonstrated by standing up, removing •.:..'or..-holding, a beret in his left
35 hand, leaning with the hand on a desk and .
LENTSOE: That's right, Judge.
JUDGE: ... using his right hand ...
LENTSOE: Colonel Kleynhans was sitting on the other side.
JUDGE: ... extending the four digits of the right-hand, excluding
5 the thumb forward in a pointing gesture, leaning forward whilst expressing the
words "...
LENTSOE: "I am fucking telling you that you are a racist."
JUDGE: Thank you. Is that a fair reflection of \vhat the witness
demonstrated? Madam Prosecutor?
10 PROSECUTOR: Yes, Judge, as the court pleases.
JUDGE: Colonel Simalane, you satisfied with that description of
the demonstration?
DEFENCE: I don't understand the question.
JUDGE: The witness now demonstrated to the court what he
15 observed, the court then recorded the demonstration because the recording
equipment cannot, of course, record the demonstration, it can only record verbal explanations. Are you satisfied that how the court recorded verbally what the
witnesses demonstrated is a fair reflection of what the witness demonstrated? DEFENCE: Yes, I don't see the record, but I've •seen him
20 demonstrate, I can say I've seen him tes... but I don't see ...
JUDGE: Yes, you've seen him demonstrate, you've heard me
place on record what I also saw the witness demonstrated?
DEFENCE: Yes, what you're telling me you've placed on record, not
what I say you placed on record.
25 JUDGE: No, ...
DEFENCE: That
JUDGE: we'l, the record. is what is beinz recorded on cassette
not what I'm writing, this is my own persona! notes.
DEFENCE: Okay. Judge.
30 JUDGE: Are you satisfied that what I have placed on tape here?
DEFENCE:-- What is •it that you placed on tape here? My instruction •
is that you repeat that to say vihat you put on tape.
JUDGE: I've out on tape what I coserved the witness
demonstrated, that is to say that he leant forward, he he his beret in his hand, - he pointed his right hand with fingers extended. Is that a fair reflection of what
the witness demonstrated?
DEFENCE: If it's what you're telling me that is what you have
recorded it's what I've seen as well.
JUDGE: Thank you. Thank you very much. Just one moment
5 'before you continue. Yes? Please continue.
PROSECUTOR: As the court pleases, thank you, Judge. Colonel, what
happened after the leaning forward?
LENTSOE: The argument of you can't address me that way and so
on ensued, during which at some stage Colonel Kleynhans said to Colonel Phiri
10 "you are excused from my office", and Colonel Phiri left the office. Major Matli was still seated, I was still standing closer to the door and I opened the door. Then Colonel Kleynhans called Colonel Phiri back and asked him whether he doesn't pay the necessary compliments by way of saluting him before he could leave, and Colonel Phiri did so and left. I withdrew myself from his office, now
15 "his office" referring to Colonel Kleynhans and left him with the course chairperson and went back to my office. I even left the fie on his desk because I was not quite sure what is it that I'm going to write in the: file as what transpired.
PROSECUTOR: What did ...
LENTSOE: That's basically that, and durino the day, at some stage
20 Colonel Kleynhans called rre back and said to me what ... or requested me to record whatever I have seen so that he can uthise that to int cate his dissatisfaction about what transpired during his office orders where I brought Colonel Phiri to the commandant. So in my understand 7g he wrote a statement or a letter indicating his dissatisfaction to Colonel Drost which obviously will lead
25 to the second office bearing, which was arranged for Colonel Phiri at Colonel
Drost.
PROSECUTOR: Okay. Before you get to that. Colonel: what was your
opinion of what had happened there in Colonel Kleynhans' office on that day? LENTSOE: What clb you mean, in my oPinic- what happened?
30 PROSECUTOR: Yes. No. What do you think of .,vhat happened? If you
JUDGE: The witness' opinion is in fact .--elevant, the court will
make its own finding whether the conduct constitutes behaviour such as complained of.
PROSECUTOR: As the court pleases. Alright. Let s go on then to the
dates in March, I want to take you there to the incident with Colonel Drost, can you tell the court about that?
LENTSOE: The incident in March, if I'm not mistaken It's supposed
to have started somewhere on 5, 6 and 7 March, if my dates are correct?
5 PROSECUTOR: Uhuh.
LENTSOE: Following the previous issue that I described of Colonel
Kleynhans he submitted his dissatisfaction and his request for the case to be
resolved by the acting commandant, then Colonel Drost with Colonel Phiri
attending. I arranged once again the office bearing for Colonel Phiri with Colonel
10 Drost and followed it up with the secretary upon which I was told that Colonel Drost was still briefing the ... or he was attending his communication period with the senior commander and staff course at the time. Then I went back to Colonel Phiri and indicated to him that once I have established a timing or a specific time when can we ... now "we" meaning myself and him, go and see Colonel Drost,
15 obviously Colonel Kleynhans would, as the complainant could have been in, I will let him know. At ... during that week we were preparing for the final stages of the course, being the certificate ceremony, so in actual fact from the Monday until the Thursday we were busy with clearing out of the officers under instruction, and preparing for the certificate ceremony.
nJ PROSECUTOR: Okay, I just wish to show you a calendar so that you can
assist the court when you say "the Monday to the Thursday , I know it was long ago, Colonel, if you can just tell us when this "Monday to the Thursday" was. I request permission to hand a calendar of T 999, 2000, 2001 to the witness.
JUDGE: Please do.
LENTSOE: Yebo, I'm correct to say from the ' to that Friday, is it
the right dates?
PROSECUTOR: The 5th to the?
LENTSOE: 5 March 2001 was a Monday ...
PROSECUTOR: Uhuh
30 LENTSOE: The 6th was a Tuesday, the 7'h was the day on which we
had to do the certificate ceremony, and the e the OUI's had their breakfast and
departed, on the Friday we were rourr'ng off the ad-hinistration, r I'm not
mistaken. But then on the 5' we went to Colonel Drost between ... or during the conversation Colonel Orost agreed with Colonel Phiri that- Colonel Phiri will 35 submit the document to indicate where was he during the feedback of
somebody, or a document of some sort had to be handed in by Colonel Phiri to Colonel Drost. On Tuesday, or the 6th Colonel Drost phoned me again and asked me whether Colonel Phiri did hand in the document he was supposed to hand in, then I went back to Colonel Phiri and at some stage Sergeant ...
5 (unclear) ... if I'm not mistaken, brought me an enveloped from Colonel Phiri to me for Colonel Drost ... addressed to Colonel Drost which I personally took to the office of Colonel Drost who was not present, and I left it with the secretary, or the admin clerk, if I'm not mistaken she's Mrs Cathy ... Cathy something at that stage.
10 PROSECUTOR: Okay. I just want to ... you were talking about a session
that was meant to be attended on the 6th, can you recall that session? Can you tell the court about that?
LENTSOE: That was, as I indicated in the earlier version, the
feedback by the I... Army IG on their findings regarding the racial disharmony.
15 At that time, maybe I failed to indicate that at some stage Colonel Phiri approached me to request the permission to go and mend his mess dress for the certificate ceremony, to which I consented.
PROSECUTOR: Certificate ceremony, when was that to be held? I just
want to confirm.
20 LENTSOE: The certificate ceremony ...
PROSECUTOR: I don't want to lose you here.
LENTSOE: On the 7th we had ...
PROSECUTOR: On the 7th.
LENTSOE: ... a dress rehearsal for the 8th.
25 PROSECUTOR: Okay. Now where was the dress rehearsal meant to
be?
LENTSOE: At Wildebeest Mess which is ...
PROSECUTOR: Okay. Now co.,.
LENTSOE: ... the Mess thic was used by the course.
30 PROSECUTOR: Okay.
LENTSOE: At the Army College.
PROSECUTOR: Now returning back to the 6th, were talking about the IG.
LENTSOE: The IG was giving feedback t: the course regarding
their findings, because they conducted an investigation. :hey was utilised to
35 call whoever they wanted.
PROSECUTOR: Uhuh.
LENTSOE: We as the instructors, or the directing staff had no
control over what were they doing, how they were doing it, what criteria did they
use to call whoever, so I was only the post-box of calling people they wanted,
5 and ensuring that those who were finished goes back to the lecture room or
wherever the bigger body of the students were.
PROSECUTOR: Okay. Now you say there was this feedback, who was
present at the feedback?
LENTSOE: Everybody was present.
10 PROSECUTOR: Who is "everybody?"
LENTSOE: All the officers under instruction were present:
PROSECUTOR: Uhuh?
LENTSOE: Some of the instructors who were present and available
at the college then, were requested to attend and ...
15 PROSECUTOR: You, yourself?
LENTSOE: I attended half a way because I had to arrange for tea
for the visitors, being General Steyr, and General Mashviala and ... (unclear) ...
PROSECUTOR: Did you see the accused there?
LENTSOE: No, Colonel Phiri was not there.
20 PROSECUTOR: Alright.
LENTSOE: As I indicated earlier on, I said at some stage
requested me to go and mend his mess dress, so unfor... I reminded hlm of the 15:00 appointment for the feedback which unfortunately he couldn't make for some other reasons which he maybe later explained.
PROSECUTOR: Okay, I just want to ...
LENTSOE: Yes.
PROSECUTOR: get clarity from you, the perm'ssion that you cave was
for before 15:00 and that you reminded Colonel Phiri scout the 15:00 feedback session?
30 LENTSOE: That's correct.
PROSECUTOR: • • Okay. Then the following day, 7 March, what can you
tell the court about that day?
JUDGE: Sorry, can you just repeat your cuestion?
PROSECUTOR: - The following day, being 7 March 2001
35 JUDGE: Yes?
PROSECUTOR: ... what can Colonel Lentsoe tell the court about that day
involving Colonel Phiri.
LENTSOE: On that day we, as I indicated we ... I was instructed to
bring Colonel Phiri on the 6th which didn't work, or never materialised because of
5 his absentia, and earlier on it's when he was-still present it could have worked out, but he went to mend his mess dress and the colonel, "colonel" being .Colonel Drost was still busy with his communication period at the senior command and staff. So I extended my time to try and make sure that I arrange a new alternative timing with Colonel Drost which obviously ended up with Colonel
10 Drost saying to me "any time you can find Phiri, you can come to my office", that was the 7th. For ... the 7th was meant for a dress rehearsal and we continued, if I'm not mistaken we started around 11:45 ... (unclear) ... and so on, Colonel Phiri was still not available. Earlier on, or the previous day I phoned his cell phone, I got his cell number from somebody, I phoned his cell phone but couldn't
15 establish his whereabouts because each time it went over to voicemail and I left a message that, "please, please, please, Manyanya, if you can happen to come this way, make sure that we meet for the appointment vi ith Colonel Drost."
PROSECUTOR: Uhuh.
LENTSOE: So, on the 7th we went to ... at around past 12:00 or to
20 13:00 then Phiri arrived ... Colonel Phiri arrived, he came to me and reported that unfortunately he couldn't make it and so on, and I understood. Then I said "please don't go anywhere, I'm just going to confirm with. Colonel Drost, fetch the documents and then I will link up with you" and we ... (unclear) ... Then I went to Colonel Drost's office, I informed him Phiri is around he has reported and I
25 would -like to handle off this case. Then or to which he consented. I went back myself and Colonel Phiri went to Colonel Drost's office. Colonel Phiri waited outside, I went in and that in the office orders fine and went back with the understanding that the colonel will be settled and down. or seated down, then I went in to bring in Colonel Phiri. Colonel Phiri came in and Colonel Drost asked
30 him of the document that he was supposed to have submitted, and about his
whereabouts the previous day, and where were he and so -on. • Then ..Colonel
Phiri indicated to Colonel Drost that he will not alion himself to answer any
questions up until the colonel can allow him to meet or to call his lawyers in when he makes such submission. And then the • two now Colonel Phiri . and 35 Colonel Drost didn't get to a consensus of how to deal vilth this thing, and
Colonel Drost at some stage said to Colonel Phiri he's excused from his office. PROSECUTOR: Okay. I just want to stop you there, when Colonel Phiri
came into the office, who was in the office?
LENTSOE: At that time it was only Colonel Drost, the second
5 session was to be myself and the third person was to be Colonel Phiri, because I
went to hand in the file and went to call, as is the procedure, to call in Phiri.
PROSECUTOR: Okay. Now how are orders conducted when people
appear before Colonel Drost at that time, on the course?
LENTSOE: The normal procedure is whoever is bringing the
10 aggrieved person, or the accused, or whatever we can call it, the other person on orders I will, in my case I will .. I have to arrange with the person who's going to conduct the orders, being now the senior person, in this case Colonel Drost, arrange a timing with him, get the facts what is it that he wants me to bring with, additional evidence, being it a progress report or whatever, depending on the
15 merits of the case why is this person there, then once that date and time comes I will make sure that I'm ready with the documentation, vhatever is necessary at the senior person in charge, confirm with him, leave the documents with him then call in the person I've brought in on orders. We salute and he will say okay, either take a chair or right, stand at ease. I will close the door behind me
20 and there to facili... to listen to what is being decided and thereafter once ... whatever the decision has been recorded. I will then take the file to ensure that that decision is executed or implemented or whatever the decision. And once the guy brought on order has saluted, went ba... out then I will take the file and follow him, that's how it's being conducted.
PROSECUTOR: Okay. Now the day in question. how did Colonel Phiri
enter the office of Colonel Drost?
LENTSOE: Very closely to what I have just described.
PROSECUTOR: Uhuh.
LENTSOE: The only difference was Colone. Drost was standing as
you are standing and as we entered Colonel Drost stanted . asking about the documents.
PROSECUTOR: Okay.
. .......
LENTSCE: And Colonel Phiri decided not to comply unless his
to answer any questions except if you talk to my lawyer."
PROSECUTOR: Okay. And what happened then?
LENTSOE: Ja, it was verbal tug of war.
PROSECUTOR: Uhuh?
5 LENTSOE: Then at some ...
PROSECUTOR: I know ...
LENTSOE: At some stage Colonel Drost tried to move around his
table ...
JUDGE: Could I ...
10 LENTSOE: ... towards Phiri wherein I jumped between the two of
them, and he excused then Colonel Phiri
JUDGE: Could I ask you to return to your seat that we just have a
clear recording of your evidence? Please describe what you did, at some stage?
LENTSOE: At some stages Colonel Drost was moving from behind
15 his desk ...
JUDGE: Yes?
LENTSOE: ... and that is the desk, here's Pniri and I'm here, behind
Phiri. So Colonel Drost is trying to go or what intending ... I'm not quite sure
what was in his mind but he was moving from behind the desk towards the two
20 of us. In my opinion, or in my observation as he was trembling and the two of
them voices were rising, I thought no, somebody is going to hit somebody and I jumped in-between them to stop Colonel Drost from whatever intention he had, nr.tn silence. ColonelPhiri from whatever argument he had in mind.
PROSECUTOR: Now, in your assessment of the situation, why was it that
25 Colonel Drost got up and behaved as he did? What sparked this?
LENTSOE: In my thinking it might be that Co:onel Phiri didn't honour
their agreement of the document the previous time. In opinion it can be that
co... he was of the opinion maybe that Colonel Phiri is wasting his time because
of failing to honour the appointment for the office orders to he handled off. I 30 can't really.pippoint what.exactly was in his mind.
PROSECUTOR: Uhuh..
LENTSOE: So can I not say why didn't Cfonel Phiri answer the
question of the documents simply by saying maybe "I care it to Raymond" or "it was handed in" or something else.
PROSECUTOR: Mm.
LENTSOE: I can't really determine, or accurately say why was he
rea... saying he wants the lawyers and why was Drost saying ... or agitated, I can't really
PROSECUTOR: Ja, that is my next question, because I understand from
5 your evidence that you say that Colonel Phiri did at some stage prior to these
orders, give you a document which you then gave to one Cathy. Now, are these the self-same documents that are referred to now in their argument?
LENTSOE: In my understanding, and if my memory can help me,
that was the document explaining the whereabouts of Colonel Phiri during the
10 day of the feedback, if I ... I never opened the envelope.
PROSECUTOR: Uhuh?
LENTSOE: I took it as sealed as it ... as I received it directly to
Colonel Drost.
PROSECUTOR: Okay.
LENTSOE: But now, in my understanding the document in ... that
I'm currently referring to, is the document explaining his whereabouts for the 6th PROSECUTOR: Okay. So at that stage wheh you come between
Colonel Drost and Colonel Phiri, what happens then?
LENTSOE: As I've explained Colonel Drost ... or the two of them
were arguing, their voices were rising, Colonel Drost was trembling and he was moving from behind his desk towards us, I'm not quite. sure whether I say towards Phiri or myself, and now, being the facilitator o: the supposed to have been office orders I stepped in-between to say to Colone Drost "let's handle this off" or to say to Phiri "no, Manyanya, relax, let's finish fhis thing' because now I'm handling en unresolved case of Kleynhans and now it's another unresolved case of Colonel Drost.
PROSECUTOR: And
LENTSOE: And .
PROSECUTOR: ... what happened now?
0 LENTSOE: No,.my course administration will heverbe finished.
PROSECUTOR: Uhuh.
LENTSOE: Because of this outstanding issue
PROSECUTOR: Uhuh.
LENTSOE:, The only role of my being ihvolved in the . two's
argument, or the three's argument is simply because I was appointed the course
101
LENTSOE: Oh, he demanded to be saluted back.
JUDGE: Okay.
LENTSOE: Or requested, "can't you salute me back?"-
PROSECUTOR: What was the tone of voice that he was using at that
5 stage?
LENTSOE: What was the?
PROSECUTOR: What was the tone of voice that he was using at that
stage?
LENTSOE: The tone of the voice?
10 PROSECUTOR: Yes, the ...
LENTSOE: It was that of an angry man. Both were ... I ... I'm not
quite sure how to describe ...
PROSECUTOR: No, that is ...
LENTSOE: ... that situation.
15 PROSECUTOR: That is fine, we understand that ...
LENTSOE: Ja,
PROSECUTOR: ... if you say it's that of an angry man. And volume-wise,
what sort of volume was he using?
LENTSOE: It was high.
70 PROSECUTOR: It was a high volume?
LENTSOE: Yebo.
PROSECUTOR: Okay. Okay, what did Colonel Drost do when he got this
request, or instruction to salute him, what did Colonel Drcst do?
LENTSOE: As far as I can remember he kept on saying "you are
excused."
PROSECUTOR: Uhuh.
LENTSOE: And I stood there, not knowing, exactly the same
situation as in the case ... in the Kleynhans case not knov.,:lna whether to take the
bite or to follow Phiri, or to request Drost to write someth or what.
30 PROSECUTOR: I know this is long ago, and you know \/,e're taking you
back to 2001, but was there any compliance with Colonel Phiri's request, order?
LENTSOE: I will be lying if I can say yes, or 72'.
PROSECUTOR: Okay, you cannot ...
LENTSOE: I'm not quite clearly-sure what transpired.
PROSECUTOR: Okay. I wish to take you back to earlier in the day of 7
10?
March 2001, you say you were the ... you called yourself a course leader?
LENTSOE: That's correct.
PROSECUTOR: Okay.
JUDGE: He didn't call himself a course leader, he was appointed
5 as the course leader. Is that correct?
LENTSOE: That's correct.
JUDGE: Thank you.
PROSECUTOR: Thank you, Colonel, thank you, Judge. And as the
course leader can you just explain to the court, what time members were 10 required to report to the college each day, what time they were excused and how
it happened if they needed time off how that would be executed?
LENTSOE: The college routine started normally at 07:30 with either
a prayer by, if .. the course has a Chaplain inside and the Chaplain or one
member will conduct the roll call and so on until around 07:45, or 07:45 when the
15 officer on duty amongst the officers under instruction will finalise all the outstanding arrangements regarding sick reports and so on, and then will communicate that to the course leader. I will then take that, consolidate it into a strength return for the HQ purposes' administration. During the day, or all requests to be absent somewhere elsewhere during the day will be
20 communicated via this .. (unclear) ... point, the officer on duty, one of the officers under instruction, that will be communicated (1) to the course leader or directly to the exercise leader, the instructor currently directly involved with at qnerifirs exercising the students and the course ... the exercise leader will confirm with the course leader who will then inform the chief instructor of the
25 whereabouts of all the OU1's.
PROSECUTOR: Who gives the approval then at -.hat stage, for somebody
to be away?
LENTSOE: It's under normal circumstance it's anybody between
the exercise leader and the the course leader.
30 PROSECUTOR: Okay.
LENTSOE: the exercise leader (1) because he knows the
complexity of his exe7cise. The course leader because he accounts for the OUI at the chief instructor.
PROSECUTOR: Uhuh.
35 LENTSOE: Okay, who then•accounts to the commandant. In this
specific instance there were ... or there was a student on duty but I had the overall control of the programme because that was the last week of the course, so any requests were either from the students on duty communicated directly to me because I was facilitating that exercise called "clearing out", as the course
5 leader.
PROSECUTOR: Uhuh.
LENTSOE: To ensure that all that needs to be covered in the course
report, or in the course closing admin is covered, all the books are returned, for
example all other equipment that we borrowed, I return, for example, and that all
10 officers under instruction are at a specific time for an appointment, or for whatever reason towards the certificate ceremony, or whatever activity has been decided on as was on the 7th the dress rehearsal that afternoon. So all those yes, you can go home, yes, you can do that, were my decisions with the authority vested in me by the chief instructor with the appointment.
15 PROSECUTOR: Okay. Now, you say already on 6 March 2001 Colonel
Drost sought an appointment with Colonel Phiri?
LENTSOE: Correct.
PROSECUTOR: And you also testified that you were looking for him on 6
March, at times you did find him but then Colonel Drost wasn't Specifically with regard to 7 March 2001, can you tell the court what attempts you made to find Colonel Phiri and when it was that you found him that you could take him to Colonel Drost's office?
LENTSOE: When I went to the lecture room in the morninc. during
... or just before, or just after the roll call Colonel Phiri was around.
PROSECUTOR: JUDGE:
LENTSOE: Uhuh?
He was?
He was present. He indicated to me that he needs to
make final touch-ups on his mess-dress, to which I said "no, no c-oblem" because my understanding was we either do that, or most of the office-s under instruction were mending their mess-dresses at Group 15 or in town, cr at the tailors of their choice so we agreed that he can do that. Than once, [established• the time with Colonel Drost which he was not specific of. :he said "any time you can find Phiri'', which left me with a very wide variety of choices, any time you can see Phiri then you can come in. At that time, I think it was around 10:00 was looking for Phiri very silently, on my own, not really too loud, I couldn't raise
him so I extended my time because I was given that leeway.
PROSECUTOR: Alright. At 10:00, where were you looking for Colonel
Phiri?
LENTSOE: At the ... at ... where they normally had their tea.
5 PROSECUTOR: Okay. Where was it that they normally had their tea?
LENTSOE: Wildebeest Mess.
PROSECUTOR: The Wildebeest Mess?
LENTSOE: Yes.
PROSECUTOR: Okay, at 10:00?
10 LENTSOE: That's correct.
PROSECUTOR: Alright. What then?
LENTSOE: Then the day grew older and we went closer to the
rehearsal times, if I'm not mistaken that was supposed to have been 11:45 into
12:00 and so on. Then Colonel Phiri arrived, if I'm not mistaken that was
15 towards to 12:00 or past 12:00 and then he told me that he's around and I said "okay, sharp, Manyanya, we can then continue with to handle that outstanding issue off with Colonel Drost." I went to Colonel Drost, confirmed that I have ... Phiri is around, he's here then what time can I come, he said "any time from ..." Fortunately Colonel Phiri was just in-between the bloc.< of offices and the
20 Wildebeest Mess, not very far from where we were doing tne dress rehearsal so he accompanied me to my office, took the file and then we '.vent to Colonel Drost.
PROSECUTOR: Okay. I just want to confirm one thing, I know it Was
long aao, Colonel, but you are dead sure that it was the place where they had
25 tea that you went to look for the colonel?
LENTSOE: Ja, I'm sure.
PROSECUTOR: You're sure? Okay. If the court :an just bear with me
for one second, please?
JUDGE: Certainly.
30 PROSECUTOR: Thank you, Judge. Thank you, Judge. Thank you,
Colonel, I have no further questions. Thank you, Judge:
JUDGE: DEFENCE: cross-examination.
35 JUDGE: Cross-examination?
Well, for reasons stated earlier, j.:dge, we reserve our
I have no questions to the witness. Thank you, Colonel,
you're excused, you may stand back, you may withdraw. Sorry, just before you go, pardon me. The assessors do not have any questions either. Thank you, Colonel, you are excused, you may withdraw.
LENTSOE: Thank you.
5 JUDGE: As was pointed out by the prosecution yesterday the
third state witness will only be available between 8 and 26 March 2004, I consequently propose that we postpone this matter, I suppose that's what the prosecution would now be doing?
PROSECUTOR: Yes, Judge, the earliest date that I can have the witness
10 here is 8 March. Prosecution is keen at this stage to lead that witness' evidence
on 8 March as he is in the country for a form of a vacation from his work in Nigeria and obviously would like to afford him the opportunity to enjoy his leave. I therefore ask for a postponement to 8 March 2004, as the court pleases.
JUDGE: So apart from accommodating the person so that he can
have an unencumbered holiday there's no other pressing need why it must be on the 8th?
PROSECUTOR: Judge, no pressing need other than the fact that we wish
to finalise the case, I think it's becoming clear that memories are fading and obviously the earlier the better.
20 JUDGE: Alright. After so many months I think 1?: more days ..
(unclear) ... that's not going to make the world of difference.
PROSECUTOR: That is so. Judge, if I may just cut on record I am not
available between the ... myself, I'm not available between 15 and 19 March. JUDGE: Neither am I, I'm already scheduled to appear in Lohatia
and in Upington in that week, so that week is not available. The week after that. the week of the 22nd to the 26tn, is the prosecution available?
PROSECUTOR: The 22nd is a public holiday, but yes, the rest yes.
JUDGE: Colonel Simalane, are you availz.-tie that week of the
23'd ? Thank you, Madam Prosecutor, not the 22nd
PROSECUTOR: As.the court pleases,
JUDGE: The 23rd to the- 26th? --
DEFENCE: That week, Judge, I'm not availaz-.e in ... I'll-be- dealing
with a certain matter at the High Court ... (unclear) ...
JUDGE: At the High Court?
DEFENCE: Yes.
JUDGE: In what capacity?
DEFENCE: No, not this one.
JUDGE: No, in what capacity then?
DEFENCE: ... (unclear)
5 JUDGE: Are you ... is that a High Court matter set down in which
you are participating?
DEFENCE: Yes.
JUDGE: And the week the 8th to the 12th?
DEFENCE: The clear week for me, Judge, to help you because I will
10 be going on leave up to the 12th. The week starting from Monday the 15th to
Friday the 19th I'm available the whole of that week.
JUDGE: That whole week I'm already scheduled with cases in
Upington and in ... at the combat training centre. That has ... DEFENCE: The whole ...
15 JUDGE: ... already been set with an attorney as well.
DEFENCE: ... (unclear) ...
JUDGE: The week of the 8th to the 12th I suppose the
prosecution, you will be available?
PROSECUTOR: I am available, Judge.
JUDGE: Could I implore the defence to reconsider your leave
period if only then for ... well, I do not know what the defence's case is consisting of but for one witness ... one state witness at least then that should not take us much more than a day at which time we can then, in orde7 to accommodate you in your leave, then consider postponing the matter until a final date to have the matter dealt with, but we've got only that v.iindow period between the 8th and the 26th for the evidence of this witness and if you're not avalIable that week of the 22nd. I'm not available the of the 15th, can we accommodate each other and meet somewhere in the week of the 8th?
DEFENCE: It's difficult to see now ... why the .._1dge is penalising the
;0 defence when everybody is available. doing a matter at the Hi... at the Labour Court..that kind• of period and I'm dealing with matters relating thereto., specifically if leave taken, I'm not on holiday in the usual sense although I have
(unclear) within the department and the ... I have to deal with certain matters, it's .a whole complex issue and I requested that leave to deal with those • issues and it would cause- me to be in Johannesburg or most of the time,
attending to the records of the High Court, consulting with counsel in that Labour Court matter, instructing it, meeting with attorneys, there are a whole lot of complex issues, but my indication when I requested this leave so short of calling it by another name, I just took it from my vacation leave, but I indicated in my
5 form if my form is drawn for that leave which has already been approved, is that I
will be dealing with those Labour Court issues ...
JUDGE: Alright, let me ...
DEFENCE: ... and related issues.
JUDGE: I fully appreciate that it causes some difficulty. MY
10 question is, however, the week of the 22nd you have a High Court application, or a High Court matter that has been set down, it's not just preparation for, is that the case, as I understood you?
DEFENCE: Yes ja, that is ... no ... ja, that matter is set down but
we ... why I was requesting a week because if it overlaps then it creates other
15 problems because it's a ... you know, I don't know hoN it will go, so I then thought to be on the safe side of things ... you know. its set down ... it's set down by the 23`d, it's set down it also involves the state, Department of Defence and the ... it might ...
JUDGE: Alright. I'm not adverse to ...
DEFENCE: ... (unclear) ...
JUDGE: ... to hearing the witness after hays.
PROSECUTOR: Thank you ...
DEFENCE: Oh! That would suit me.
PROSECUTOR: After hours or ...
DEFENCE: Yes.
PROSECUTOR: ... over a weekend.
DEFENCE: Ja, any other time will do.
JUDGE: In Which event the week of the 22'd, or rather then the
23rd to the 26th will be. a better arrangement simply by vii .._.e of the fact that I've also then_ asked, if at all, to accommodate my directorate in being available that week in Pretoria for another matter, so that is depending on this:matter whether I'm available for that week as well, so could we arrange then for the evening cf 23 March, would that suit you?
DEFENCE: Ja, that's the evening ... so any day of that week and its
35 convenient to the court, it won't trouble me.
JUDGE: Would 18:00 ...
DEFENCE: Ja.
JUDGE: ... suit everybody? Right, ...
PROSECUTOR: Yes, Judge.
5 JUDGE: ... let me first hear from my assessors. Then the matter
is set down, we will hear the last state witness on 23 March, 18:00, Court "C". You will make those arrangements for also the court to be available, Madam Prosecutor?
PROSECUTOR: Yes, Judge, I will make arrangements for this very same
10 court so as not to confuse anyone.
SMITH: Thank you. The matter will stand down. Colonel Phiri,
thank you, you've heard the date to which the matter is postponed and the time, please be present. Thank you, you may withdraw, you're excused.
ACCUSED: Thank you, Judge.
15 PROSECUTOR: As the court pleases.
DEFENCE: Thank you, Judge.
(CASE IS POSTPONED UNTIL 23 MARCH 2004)
(COURT RE-OPENS)
20 COURT CASE OF 98007693PE : LIEUTENANT COLONEL GOODMAN MANYANYA PHIRI RESUMES ON 23 MARCH 2004
JUDGE: In the matter of the S v Phiri the time is 18:04 on 23
March 2004. Madam Prosecutor, before we commence with state's case I understand that there is something that you wish to inform the court of? PROSECUTOR: Yes, Judge, it was brought to my attention this afternoon
that the motion had been filed and that certain court orders were made recarding the case of which my learned colleague can inform you more completely.
JUDGE: In more detail? Thank you. Colone Simalane?
DEFENCE: Yes, as the court pleases. Judge will only from the
30 documents. In due course in further. appearances we'll r skz copies of these documents so that they can be filed on .record. • Well, for the purpose of my address then I will refer to the only copies that we ha.•,e we still have to purchase more.
JUDGE: Please continue:
35 DEFENCE: Yes. Judge, there's been a lot of dramatic events this
morning in the member working with the legal team at the High Court to move an urgent application wherein we seek certain relief. The long and short of it is that
this late afternoon certain orders were granted by a judge of the High Court. JUDGE: Which judge would that have been?
5 DEFENCE: It doesn't appear on the record but I believe it's Judge
Claassen.
JUDGE: Indeed?
DEFENCE: Yes.
JUDGE: Thank you.
10 DEFENCE: Claassen, J. The relief sort in terms of ... the motion
reads: Kindly take notice that the abovementioned applicant, that is Colonel Phiri intends to bring an urgent application to the above honourable court on 23 March, which is today, at 14:00 or soon thereafter as counsel maybe heard for an order in the following terms. The first order is that that the forms and service
15 provided for in terms of the rules of the above honourable court be dispensed with insofar as may be necessary and the application be heard as one of urgency in terms of the uniform rules, Rule 6 to 12. The application was heard on that basis, this relief is not mentioned but it ... the application was heard on the basis of the Rule 6(1)(12). Now, the second relief. the second order is
:0 mentioned here as granted. The second order reads, that the hearing in the military judges court, Ref Nc. 98007693PE, Lieutenant Colon G M Phiri be stayed pending the orders ... (unclear) ... for under ... (unclear) ... 3 and 4, this order is granted. Now, Order 3, Order 3 reads "Applicant's order" ... an order declaring that the applicant, that is Colonel Phiri is entited to have access to
2c documents, and/or information held by the first respondent, the Mir seer of
Defence is the first respondent. Alternatively fifth respondent, the fifth respondent is Major H S Pretorius, the information officer. Alternatively fifth respondent, in the applicant exercising or protecting his richt in a trial pending in the military court, this order is :ranted, Order 2. The Orde7 No, 3. Order No. 4,
30 that the first respondent, .the Minister.of. Defence, alternatvely fifth respdndent, that information officer Major Pretorius',-- be ordered and directed to furnish applicant, Lieutenant Colonel Phiri with the following documents, namely (a) South African Army Inspector General's Report involving Pn:ri er and others at the South African Army-College. February...
35 (End of tape 3)
(Transcription continues on tape 4)
DEFENCE: ... to March 2001. (b) the commander's investigation
report as ordered by acting commandant of the S A Army College, Colonel
Edward Frans Drost, to look into complaints against Lieutenant Colonel Phiri,
5 March 2001. (c) The ... (unclear) ... intervention report (Intervention at the S A Army College, January to February 2001 by the British Military Advisors to South African National Defence Force within seven days of the date of the court order, this order is under 4, which I've read, have been granted as ordered. Order 5 is not mentioned there in the orders granted. 5 was granting the applicant such
10 further alternative relief as this court deems fit. The 6th order, and the final order, this order was granted, ordering that the first respondent,- that is the Minister of Defence pays the costs of this application. These are the orders they have granted by the High Court, and as I understand them is that, especially the Order 2 that the hearing in the military judges court, in reference 98007693PE,
15 Lieutenant Colonel G M Phiri be stayed pending the orders paid for under triad 3 and 4. It would appear to me therefore that the High Court has stopped these proceedings until such time that the documents are supplied to Phiri, and that we can then resume these proceedings. And subject to the input of the court and my learned friend I understand the word "stay" and ... (uric:ear) ... effect from the
21.20 time the High Court delivered the order that these proceedings naVe stopped, and that any issue relating to taking these proceedings forward would be discussed when the papers as ordered have been furnished to the applicant in the High Court, and Lieutenant Colonel Phiri before this cc i_irt and that once that has happened we can then look to the modalities of taking the matter forward.
25 that is how I read Judge Classei:' orders and if my learned friend concurs and the court agrees then the court should declare these proceedings as stayed as ordered by the High Court. These are my submissions, unless the count would like to hear me on any other matter pertaining to these orders I wili be pleased to address the court ... (unclear)
30 . JUDGE:
order-itself? Could I ask her, has the prosecuticn had insight into the
PROSECUTOR: Judge, yes, I did see the order, it refers to .. (unciear),
as mentioned by Colonel Simalane, Defence Counsel. I ha: Je not read the entire notice • of enrolment; just this specific ... (unclear) ... that were granted by the 35 court.
JUDGE: I'm specifically referring to the order itself.
PROSECUTOR: The order I have read, Sir.
JUDGE: Alright. Is there anything that you wish to comment
upon, or address the court on in respect of the orders?
5 PROSECUTOR: Nothing, other than just for completeness sake, it's
probably not relevant but there is an additional paragraph referring to the contents of the documents which Colonel Phiri seeks, and I think just for completeness it should be mentioned to the court. Perhaps Colonel Simalane could just ...
10 JUDGE: I actually just have sight of the document itself, the court
order, may I peruse that, it will be ... then you can have it back and copies are going to be supplied to the prosecution at a later stage then, tomorrow morning maybe?
DEFENCE: Yes, ... ja, in fact we would like to have this document:
15 the notice of motion and the court order forming part of the record.
JUDGE:
DEFENCE: Absolutely.
It's just that they should be marked accordingly Exhibit
so and so, and so and be intearal to the record of this court.
JUDGE: May I just have a look at them before we actually assign
them specific numbers? Thank you. The paragraph that the prosecution refers to. I understand then will be paragraph 2 of the order? The order wants (unclear) ... 2, 3, 4 and 6 of the Notice of Motion and then in paragraph 2 it says. It is further ordered that if the respondents 1-6, in specific I think respondents 1 and 5 that you mentioned having access, or holding the information in custody, if the respondents wish to withhold any of the information or documentation sought that such be specified to the applicant, and the respondent shall, at the commencement of the hearing: prove special grounds why the material should not be furnished to the applicant." Am ... my understandng is that the order is now made for the release of the documentation provided for in the Notice OT
30 Motion and that if Chief of the Defence Force or the Information Officer you 'referred to, if they wish to withhold any of those- documents, then at the commencement of the hearing the defence. that is to say the accused Colonel Phiri would have to show special grounds why that material ... no sorry, the 'respondent shall ...
35 DEFENCE: Yes.
JUDGE: prove special grounds why that material shall not be
furnished to the applicant. In other words, Chief of the Defence Force and/or the
Information Officer would have to come and explain why they are not going to
provide that. Do I understand it correct? And when it says "of the hearing"
5 refers to this court, is my understanding of that correct as well?
PROSECUTOR: That is the way I understand it, Judge.
DEFENCE: Ja, I understand it the High Court ... (unclear) ... MY
instructions are that, Judge, any opposition to this order ...
JUDGE: Yes?
10 DEFENCE: ... will be done at the High Court. In other words they
will have to convince the High Court as to why those special grounds they are putting ... it appears to ... it's a little bit, the wording, the recommencement, Judge, as I understand it now, the recommencement of these proceedings mean the documents haven't been furnished . (unclear) ... seven days and they say
15 the documents are furnished. Now, if there are certain special, or grounds which they want to specify that certain portions of the documents may not be made available, they will do so in writing specifying those grounds, and those grounds will be then taken to the court that made this order, to look at those grounds to be able to come to a decision whether those grounds suffloe for the exclusion of
20 these records or not. To me that makes sense, of course, because if the court makes an order along these lines then it obviously means it has ... and it has allowed the possibility of submissions, that they can consider those submissions itself to see whether those subm'issions held or not.
JUDGE: Thank you.
75 DEFENCE: ... (unclear) ... Ja.
JUDGE: Comment from the prosecution?
PROSECUTOR: Judge, it seems at this stage to be amblouous, and all
prosecution can say is who knOws?
JUDGE: Do ... would you agree ... it is ambiguous as I read it
30 because I understood the wording "the. hearing" to be referring to this court ...
PROSECUTOR: Yes, I:also understood'.
JUDGE: ... not ...
PROSECUTOR: ... it like that.
JUDGE: not as if ... I unzerstand your araiment it is ceriafnly
35 an order made by the High Court, and should anybody Or any institution wish not
to execute that order then certainly an argument can be made out that it should then again be explained to the institution, the High Court who made the order. That is certainly a very logic argument that you have posed there, it does, however, not take ... it's ... the logic of it does not, however, override the wording
5 which allows for the possibility as it stands there for such an explanation then to
be afforded to this court which leaves me a bit in the lurch here.
DEFENCE: Yes. You know, one should read the recommencement,
read the recommencement in conjunction with the specified time, the seven
days. The lapse of the seven days within which the documents must be
10 furnished means these proceedings may recommence because if those documents are furnished to the satisfaction of the applicant, of Colonel Phiri it means the other court has nothing more to do, it means this matter can recommence and proceed.
JUDGE:
15 DEFENCE: Correct.
Yes. Now, if the order is not being fully complied with on
the basis that now recommencement has come but the order is not being complied with, ja, then it starts to get clearer, and the orde- is not complied with, and if the order is not complied with then of course if it's gong to be content then the court ... previous court ... High Court will deal with the issue of content because it ... it's on order, but if there's an explanation :rat in certain portions are not being provided for these reasons, then the same High Court must look into those reasons to satisfy itself this is not contempt, these are good reasons. can I ... ynH know ...
JUDGE: I fully a...
DEFENCE: but this is at the recommencement of these
proceedings because at that time we are now ready to recommence, and the seven days . has lapsed and the documents ... (uncles-", ... order are there. available, but now ...
JUDGE:- May I just have that order again pease?
30 DEFENCE:. Yes:. .. (unclear)._ a little nebulous ... (unclear) to to
those specifics. but the Engl1sh•is quite clear if you look it in the context or (unclear) issues. Ja, there's another good point v,:n..ch, in my view, the
member who is accused here is making ...
the legal department this afternoon when the matter was to be heard before the
High Court heard the matter that there is a resistance, so this order ... the court
has the mind that the ... perhaps the respondents still want to oppose this matter
5 JUDGE: Yes?
DEFENCE: ... these orders.
JUDGE: Alright.
DEFENCE: Yes, and therefore at the end of the seven days the
recommencement therefore would be if the matter is being opposed. In other
10 words the respondents are going to look at this order and they may then form their minds there ... there are indications that they want to resist this, and therefore that resistance will be heard by that court, the basis upon which they want to resist the order. So the hearing at recommencement therefore its at the High Court when they also want to say they may not be complying ...
15 JUDGE: Alright.
DEFENCE: ... then there are those indications, but I guess they're
taking instructions in the ...
JUDGE: I think to put the matter beyond the pale ...
DEFENCE: Yes.
20 JUDGE: ... it would be prudent for this court to determine exactly,
or to have someone determine exactly what is meant by the High Count. The argument forwarded by the defence makes 100% sense to me, it h. to my mind, however, still is not clearly stipulated in this draft order, as was signed here by the Registrar, and what I'm then going to do is I'm golrd to have the matter stand down for this paragraph 2 to be clarified, and if needs be if the wording for it to be altered such as to read that "if the respondent, CT respondents in this matter wish to withhold any of the information that be spe:Thd tc the applicant, and that the respondent shall before this court, that is t: say the High Court,
supply reasons, or special grounds why not to be furnishei. Then it is crystal 30 clear, .because as it stands I think if the prosecution's they say thathit. is
ambiguous and certainly on the wording, "recommencement.pfthe• •-it -
leaves the possibility that I'm not comfortable with. It weu v, for instance imply
that this court would have to reconsider a decision already. made by this court. but that the onus has now shifted to the state on argumehts -that have already beeh heard by this court which certainly supports the coh:ention that it should
rather be the High Court. In order for this matter then to be clarified, I think it is prudent for this court to have this matter stand down, it's a matter that can easily be rectified, no arguments need to be made, I think the Registrar must just determine, or specify exactly what is meant the recommence of the hearing, and
5 for that purpose can this matter stand down until tomorrow afternoon 14:00 just so that we can determine this one issue and then decide the matter forward. I think there is no question about whether we shall proceed with the state's case, that is clear. I think what we need to determine here is what if the state is not going to provide the documentation, before who they must supply these special
10 grounds, and that's the one aspect, and the second aspect is then we have to determine a date, because I'm not going to postpone the matter as sine deg(?), but we will then look at a date that gives sufficient allowance for the respondent, or the state rather, then to make the decisions about the documentations, reply to the defence and for the defence to prepare their further conduct, based on
15 those documents.
DEFENCE: Are we on record, Judge?
JUDGE: Yes, we are.
DEFENCE: Yes. Yes ... oh! It's good then if we are on record. We
should also be mindful of this order 2 that these proceedings are ... (unclear)
20 the word used they are stayed ...
JUDGE: Stayed. Yes ...
DEFENCE: They are stayed.
JUDGE: That's what I said, the matter is to be postponed ...
DEFENCE: Yes, ...
JUDGE: ... until such time as you have your ... the
documentation.
DEFENCE: Yes ,..
JUDGE: Or otherwise.
DEFENCE: Yes, because if we keep making short
30 postponements like tomorrow or the oter.day, we are proceeding thIS we are, in fact, in contempt of the High Courrorder, becarse if tre orders says the proceedings are stayed .„ are stayed, then its notarnbiguc_s, the proceed ngs are stayed. We shouldn't try to proceed in contravention of :re High Court crder ... (unclear) ... because ...
JUDGE: Well, the court order is not clear.
DEFENCE: ... (unclear) ... in our ... if the proceedings are stayed,
they are stayed, and after seven days ...
JUDGE: Mm?
DEFENCE: ... things will be clear one other way that the documents
5 are there, or in whatever way they are met in whatever terms, then the court has the basis then to say "I need clarity" to the High Court, how do I proceed, because we're like going it into the dark before this period expired. When the period expires and they should have complied they may as well make a full compliance, they may well oppose completely, decide to go back to the High
10 Court on full force whatever and say "look, we ... in fact we are opposing this order." Because if we talk about seven days, within seven days ... remember it was an urgent application, it is in the form of a ... (unclear) ... yes, the ... (unclear) ... will be saying the order becomes permanent at a given time, so there's an indication of seven days when this order will be permanent. In other
15 words it came on the basis of an urgent application, an order is made and ... (unclear) ... therefore mean on the return day, on the ret..:rn day the order can be made permanent, the order can be discharged either way. It means on the return day the party can come and seek to discharge the order, in this case we are talking of no order here, if the return day order is discharged. If, after that
20 seven days this is complied with, and they are not opposin: then they mjst fully comply with this order then this order becomes permanent. This is the, I understand the time limit, the urgency, the urgency culminated of course it's a ... (unclear) ...
JUDGE: Now you see that is ... that puts a bifferent slant on the
25 matter that you did not provide to the court before.
DEFENCE: Yes. No, no, ja, now it happens ... it occurs to me,
Judge, when I read within seven days, then it says sometn•ng important right?
Then If I put it together that this is not ... this is an intet.-1 relief. This is an
interim relief, it's ... (unclear) ... if it's a ... (unclear) ... it's s_oect to be opposed,
30 it's subject to be permanent. Ifit's•. going to be opposed then it be. discharged, if it's not.op.posed-it becomes permanent. So it means obviously it is a matter of going back to the High Court to confirm this orde- make it permanent or to discharge it and make it an order discharged, where .ion we're back to square one.
35 JUDGE: 'So the matter is set down next week sometime for The
return date of the rule nisi?
DEFENCE: Ja, ja, ... yes, it would appear so, that after seven
days the instructing attorney in this matter will then seek confirmation, have they
complied, have they not complied? And have they in meantime certified
5 opposing papers and things in which they want to oppose this paper? In other words the matter will then go back to be determined. In either way the matter will have to be finalised by the High Court because the High Court will have to say this order is final, or this order is discharged, or depending on what these people are going to do ... (unclear) ... if they comply partially the instructing
10 attorney will concede that with counsel and be able to say that "your order, Judge, has not been complied with, the explanation, in our view is challengeable" the court will consider that, but the court must make a certain word it's a rule nisi.
JUDGE: Alright. Then I ... I hear what you're saying ...
15 DEFENCE: Yes.
JUDGE: ... I hear your argument. Is there anything that the
prosecution wishes to add?
PROSECUTOR: No, Judge.
JUDGE: With all due respect to the High Court, I ... this is the
"")0 only page of the order. Is that correct?
DEFENCE:
JUDGE:
of seven days? DEFENCE:
JUDGE: Yes, that's what I've been furnished with, yes.
I understand your notice informatich contains the period
Yes.
And that the order referred to here as ... (unclear) ... 2,
for the matter to stand down and for the state to have seven. days within which to comply for the ... with the documentation contained the seven day reference. As I said, with all due respect to the High Court the draft orCer should then ...in clarities, for perfect clarity then have read something to he effect that the
30 respondents are hereby ordered to supply to the applicant the do.c.umen.ts ieferred to in the motion; and have seven days within which to either show. cause '- why such should not be provided, that would have put, as I've said, the mat...
DEFENCE: Ja, ja, you ... (unclear) ...
JUDGE: ... the matter totally beyond the pale.
35 DEFENCE: ja, it would have been much clearer. You know, this I
also just get from the papers here ...
JUDGE: Ja.
DEFENCE: ... that time is specified then it was specified for some
reason within which this to comply. And ...
5 JUDGE: It would seem that the order itself ...
DEFENCE: Yes ...
JUDGE: ... that is being sought may not have been constructed in
DEFENCE: Mm.
10 JUDGE: ... the terminology one would prefer it to have been so
that one could clearly see that yes, this is a rule nisi order, but ... alright. I understand your argument. I have no problem in postponing the matter, the order by the court is clear, the matter is to be stayed and yes, against the background and in the context thereof that there is a seven day period set after
15 which the respondent would have had to comply, or supply the reasons, I am
quite willing to have this matter stand down and we then have to determine a date that would suit the circumstances as well as all the parties and the court.
PROSECUTOR: If I may come in here, Sir, Colonel Kleynhans, the final
prosecution witness has indicated to me that he will be leaving the Republic again at the end of the week ...
JUDGE: Mm.
PROSECUTOR: ... and will return to the Republic on 10 May for
approximately three weeks, if that gives us any indication.
DEFENCE: Ja. No, I think, Judge, what we have to to now we've
got to work in con... in compliance with the High Court. You know, what my
learned friend is talking about now, it's when we want to resume that kind of
information would be relevant when we want to fix a date to resume. I think,
Judge, if you agree and my learned friend is that we Should rather ook at a date
after the seven days, look at a date after the seven days v.'hen, in terms of this
. .30. . .order, any other thing would have been done, and.then the me.mber.will then go
to his instructing attorney after seven days. to. look. into the' question as to
compliance, are the documents there and then they will :hen ac to the High
Court to make a final order. And then when that has ha:oened. presumably
When we meet again we will get that report to say the High Court has finally dealt
with the matter, the question of documents has been deal: with effectively, we
have the documents and then discuss what my learned friend is saying as to the availability of the next witness ...
JUDGE: Yes.
DEFENCE: and to be able to postpone with that in mind. I think at
5 the moment we should postpone taking the seven days into consideration, give it
maybe two to three weeks when we'll come back and say what is the status of the matter and then we take it up from there, because by that time ...
JUDGE: Alright. I repeat that I will not have a matter be
postponed pending some or other unforeseen unknown date. I will choose a
10 date upon which if this compliance by the applicants ... or rather the respondents to the motion has been sorted out, or not, and if not and the matter is still pending a decision by the High Court, at that day we will the obviously not be able to resume and the matter shall then stand again to a certain future set date, but yes, we will keep in mind that there are certain time-scales involved in any
15 High Court matter, and also we have to accommodate the availability of this witness. Now, you say that on 10 May he returns to the Republic for the period of three weeks?
PROSECUTOR: Yes, Judge.
JUDGE: So that he will be leaving by 28 May again?
20 PROSECUTOR: Yes, Judge. Judge, I also just wish :: place it on record
that I have my doubts as to the cost effectiveness of hay everybody come
back to court after 10 days., after two weeks cetera and r— wondering at this
stage whether it wouldn't be prudent to postpone the matter to a date in May
when that witness is available, and should that date not defence counsel
5 because of pending High Court's actions then obviously it negotiable at that
stage. It is prosecution's suggestion at this stage. As the pleases.
JUDGE: Yes, I ... call me a formalist, I would refer for all of us to
sit around and look each ether in the eye and decide upon a date rather than
having the matter postponed over the telephone, if that car ::e avoided at all
30 costs then I think that would. suit my style better.- Alright Given my own scheduling might we look at as late a 'date in May 'as possible, :he week of 24-28 May, preferably 25, 25 May?
PROSECUTOR: I am available, Judge.
JUDGE: Defence?
35 DEFENCE: Let me just look at my book of word he-e. 25 inlay?
JUDGE: Yes.
DEFENCE: Yes, we could have ...
JUDGE: Let set the two days down ...
DEFENCE: We don't know ...
5 JUDGE: ... 25 and 26.
DEFENCE: 26?
JUDGE: That again gives two months from today so that non-
compliance or compliance the matter can either be served before the High Court
again or the defence may prepare with what has been provided to them. Would
10 that suit you? 25, 26 May. The assessors will be available, I myself will be
available. Right, Colonel Phiri,
ACCUSED: Yes, Judge.
JUDGE: ... we will meet again then on 25 May. If ... there is
always the possibility of course that should, for some or other reason the matter
15 cannot proceed on that day that you cannot, of course, appear before any military judge for that matter for a further postponement, so ... but that it shall be a formal postponement if that is the case, the matter will not just be administratively dealt with and we will over the phone continue to tell each other to continue another date. So I will be here on 26 25, 23 and we will continue,
20 or if the matter has to stand down to another date that we all agree upon it wiH probably be before another military judge from the Pretoria area so that 1 need not come down only for a postponement. Do you understand?
DEFENCE: Thank you, Judge.
JUDGE: Anything else? Prosecution?
25 PROSECUTOR: No, Judge, as the court pleases.
JUDGE: Defence?
DEFENCE: No, ... (unclear) ... , Judge.
JUDGE: If that court order by the High Court and the motion
could then just be made available tomorrow I am still in Pretoria for another two
3C days on another matter and then that can be incorporated into the record:.
DEFENCE:. Yes, what do we call this exhibit?
JUDGE: Unfortunately I have not ...
DEFENCE: Not ...
JUDGE: ... looked at the previous number and I don't have it right
JUDGE: Yes.
DEFENCE: Yes, we could have ...
JUDGE: Let set the two days down ...
DEFENCE: We don't know ...
5 JUDGE: ... 25 and 26.
DEFENCE: 26?
JUDGE: That again gives two months from today so that non-
compliance or compliance the matter can either be served before the High Court
again or the defence may prepare with what has been provided to them. Would
10 that suit you? 25, 26 May. The assessors will be available, I myself will be
available. Right, Colonel Phiri,
ACCUSED: Yes, Judge.
JUDGE: ... we will meet again then on 25 May. If ... there is
always the possibility of course that should, for some or other reason the matter
15 cannot proceed on that day that you cannot, of course, appear before any military judge for that matter for a further postponement, so ... but that it shall be a formal postponement if that is the case, the matter will not just be administratively dealt with and we will over the phone continue to tell each other to continue another date. So I will be here on 26 ... 25, 23 and we will continue,
20 or if the matter has to stand down to another date that we all agree upon it will probably be before another military judge from the Pretoria area so that I need not come down only for a postponement. Do yod understand?
DEFENCE: Thank you, Judge.
JUDGE: Anything else? Prosecution?
25 PROSECUTOR: No, Judge, as the court pleases.
JUDGE: Defence?
DEFENCE: No, ... (unclear) ... , Judge.
JUDGE: If that court order by the High Court and the motion
could then just be made available tomorrow I am still in Fretoria for another two 30 days on another matter and then that can be incorporated :nto the record:. .
Yes, what do we call this exhibit?
Unfortunately I have not ...
Not .
... looked at the previous number F.-id I don't have it right
DEFENCE: Okay, we'll sort out at the next hearing ...
JUDGE: ... we'll mark ... I will mark it in due course. A PA)c.=-'ec--(bc-c-:-.7
DEFENCE: ... as to what the actual ... you'll inform us then
(unclear) ...
5 JUDGE: I will inform you.
DEFENCE: Yes ...
JUDGE: Obviously.
DEFENCE: ... what it is.
JUDGE: Thank you, the time now is 18:44, the tape is to be
10 stopped. Thank you, Colonel, you're excused, you may withdraw.
(CASE IS POSTPONED UNTIL 25 MAY 2004)
CASE RESUMES ON THE 25TH OF MAY 2004
JUDGE: (unclear) by the Prosecutor.
PROSECUTOR: Thank you Judge. The accused before court is
98007696 PE Lieutenant Colonel Phiri of the SA Army College. The matter is
5 partly heard in front of Colonel Vinter (unclear) as in court today. I was instructed today and that apparently Captain Magaza will take over the Prosecution of the matter before court, and that we still are (unclear) trying to get hold of all the documents as required by the High Court order. Which was obtained and which helped with the proceedings at that stage. So the State wishes a remand until
10 the 6th July 2004, and this will be the last date a set date for postponement. If the State hasn't been able to gather all the documents as required on that day we will postpone the matter to (unclear) but hopefully the State will have all the documents will have handed it over to my leaned colleague and on the 6th of July will be in the position either Captain Magaza once again myself to do the matter
15 (unclear) to finalise this trial with Colonel Vinter, as the court pleases.
JUDGE: Right so on the 6th of July it will not be for trial?
PROSECUTOR: No.
JUDGE: It will only determine another date for further trial in the
6th of July?
PROSECUTOR: Yes Judge this is just to ensure that we've got all the
documents as the High Court order prescribed.
JUDGE: What is the problem?
PROSECUTOR: Judge I understand that the d::uments need to be
gathered by the adjutant at the SA Army College as far as I know. I don't know why they are struggling so much with that it might be :ecause of numerals changes of command. I know that you will be (unclear) a: one stage was a the commandant there was General Nkonyeni I think and Colonel (unclear) was sitting in as the acting commandant it might be because a' That I'm not sure. It is something that which is not being handled by the Frosec_:.on Section at all. Its
30 been done by, by the unit at unit level as far as I know.
JUDGE:..
Yes, but please tell the Senior :-:-osecution Counsel, Lieutenant Colonel Slobber to assist the adjutants of that unit to get all the necessary documentation. Alright?
PROSECUTOR: I'll do so.
JUDGE: Thank you. Mr Defence counsel an.thing from you r
side?
DEFENCE: No nothing more from what my leaned friend has said.
Just to emphasize that the High Court order is clear on two issues. One that these documents must be made available to, to the member who for him to
5 prepare for his defence.
JUDGE: And all those documentation must be submitted through
to the accused.
DEFENCE: Yes. just to also clear in the second point that the
proceedings of the Military Court are to be stated until such time that these
10 documents are made available and the trial proceeds. And we had hoped that today and if the documents are not available is it postponed cynically, because the Defence is of the view that if we persist on postponing this matters to (unclear) we are in fact contravening, we are in contact with that High Court order (unclear) the accused has to be (unclear) and has to be formally before
15 court, and that is for that reason that we have insisted on a postponement seeing that the okay on discussions with the Prosecution today we've agreed that if those documents as my learned friend had said 27e not available by the next date the 6" of July, when we postpone on that date we will do it (unclear) on the (unclear) a matter when the documents are available. The Prosecution
20 will then reinstate the matter with contact of you by the interested within the matter that the matter is coming back to court. It is all for all these reasons convenience continence and think and also obviously to :amply with the High Court order.
JUDGE: Yes of cause I really hope that these will be no problem
25 to obtain these documentation. Madam Prosecutor I again instruct you to convey to the Senior Prosecution Counsel that he must assist the adjutant of that unit or the Commanding Officer of that unit to get hold of these cco.umentation before the 6th of July.
PROSECUTOR: ! will do so Judge. Thank you.
30 DEFENCE: Thank-yod Judge.
JUDGE: Colonel anything from your side?
COLONEL: Nothing Judge thank you.
JUDGE: Anything from the (unclear) side?
MAN'S VOICE: Only to say that (unclear).
JUDGE: Colonel for the record what happene:?
124 COLONEL: What happened there was (unclear) court appearance we given the dates 25th and 26th (unclear) and the effort (unclear). So the two of us left together by 8:30 we were already at the office only to find that if (unclear). We were assisted by (unclear) who called here or he called (unclear) or whoever
5 he consider (unclear) on the Colonel (unclear) and then his the one who has advices us that it is going to be postponed from court (unclear) but would have appreciated if we are told on time.
JUDGE: So you were also not aware of the fact that this will only
be postponed?
10 COLONEL: We were not aware of anything Judge.
JUDGE: Madam Prosecutor (unclear) on that?
PROSECUTOR: Judge as far as I know the State will not directly contact
the assessors due to the fact that we are on the (unclear). We would not wish to speak to the assessors and (intervenes).
JUDGE:. What about the court manager?
PROSECUTOR: The court manager Judge I have no idea why he
perhaps did not inform the assessors himself. He specifically phoned me and requested that I just get their contact details to probably prevent that in future it might be the reason why he was unable to do so previously.
JUDGE: Colonel did I they have your contact with them?
COLONEL: Every time I was in contact with (unclear) our contact
details at first they used to both fax and call me but this time nothing happened. JUDGE: Ja, Madam Prosecutor yoU never do or not prosecute in this matter and you will also not do the prosecution in this matter because it is acceptable that the accused was not informed about the changes (unclear). And I will personally (unclear) PI (unclear) but in future I will first (unclear) call and (unclear).
PROSECUTOR: Judge I will make sure that the court finds that,
JUDGE: The case is being postponed until 6: July 2004 would it
30 be in this court or in court C Madam Prosecutor?
PROSECUTOR: Judge I have not been told which could it will 'be in but
because is only going to be postponement at that day we'd rather do. it in this
court and then when Colonel Ven:er has given us an indication we will be able to
decide on which court.
35 JUDGE: Will you be available on that day Colonel?
DEFENCE: Yes Ma'am.
JUDGE: And you too Colonel.
COLONEL: I will be available.
JUDGE: It will only (unclear) before or ha'f an hour or so it is not
5 for (unclear). The case is been postponed until 6th July 9:00 in the morning you here in this court Colonel. Mr court orderly just insure in the imaginary, I have been insured and (unclear).
POSTPONED TO THE 6TH JULY 2004
10 CASE RESUMES ON THE 6TH OF JULY 2004
JUDGE: Madam Prosecutor.
PROSECUTOR: Thank you Judge. The accused before court is
98007693 PE Lieutenant Colonel Phiri of Defence Intell'gence the matter was
15 postponed on the 21st of May due today in order to confirm whether the document as ordered by the High Court have in fact been handed over. I can confirm to this court that has been indeed done so the Prosecution confirmed with (unclear) that it has been done. We requested s...oh documentation in writing so that we can give something to the court to Say tnat we complied with
20 the High court order and this morning before I left the off':e such letter has not yet been received from (uncltait) but the State can confirm :o the court that it has all being handed over (intervenes).
JUDGE: When has it been handed over?
PROSECUTOR: Judge I'm not certain of the date between Colonel
25 (unclear) and General (unclear) they insured that it was handed over that's why we requested it in writing just to make sure that we have tne and so forth. I also understand that the presiding Judge in the case Colonel (unclear) will be in time next week from Bloomfontein to prosecute the or to presce over the probable homicide cases (intervenes).
30 JUDGE: That's where it's going (uncleaq.
PROSECUTOR: And the State will therefore request a postponement to
next week so that we can set the date (unclear) for trial be:E.,use as it has been said we have complied with the High court order. Thank you _
JUDGE: Thank you. Mr. Defence Counsel co. you confirm have
35 you received all the documentation?
126 DEFENCE: No Ma'am new news to me what learned friend (unclear) in the honour of court (intervenes).
JUDGE: The documentation, which the High court ordered, you
have not received that yet?
5 DEFENCE: No has not received anything.
JUDGE: Nothing at all?
DEFENCE: Nothing at all is just that they have (unclear) State
attorney and the instructing attorney are trying to determine to resolve between
themselves as to this documents and identify this documents. It is in the process
10 of finding the documents. The documents have not been furnished and it has been pointed out to the that, it's documents have not been furnished and we still waiting for the documents and up to yesterday I was in contact with the instructing attorney he even faxed me a letter which he had (unclear) to the State attorney pointing out the documents in terms of the (intervenes).
15 JUDGE: Do you have that letter here with you?
DEFENCE: Yes I've got the letter ma'am. The, what my learned
friend has been talking about it is (unclear) correspondence. That correspondence is also available where certain Colonel (unclear) did write to (intervenes).
20 JUDGE: Lieutenant Colonel Lekutsiye.
DEFENCE: Lekutsiye?
JUDGE: Yes.
DEFENCE: Lekutsiye did write to Colonel (unclear) and these
documents were send to the State attorney, I also made a copy available for my learned friend.
JUDGE: Mr. court orderly, Mr. Court orderly just hand a.'er the
documents to the Prosecutor.
DEFENCE: These are all the documents that you have in generated.
JUDGE: (unclear) let me just see where is the date on it.
30 DEFENCE: But the very last letter is at the end Ma'am.
...
JUDGE: •That is the one you received yesterday?
DEFENCE: The one, the one was faxed to me.
JUDGE: Madam Prosecutor according to you who submitted the
Defence Counsel the documentation, do you perhaPs know?
PROSECUTOR: I have no idea unfortunately I don't know. I know that
between Lieutenant Colonel Lekutsiye and the General (unclear) they were instructed to see to it that the right court order was complied with.
JUDGE: Yes.
5 PROSECUTOR: As far as the instructions are they have complied with
the High court order, (unclear) now additional documents which are required but that does not fall within the end of the High court order and therefore the (intervenes)
JUDGE: Okay but according to the Defence Counsel he has not
10 received anything, is that so Mr. Defence Counsel?
DEFENCE: Nothing whatsoever Judge.
JUDGE: Nothing whatsoever since the High court may (unclear).
DEFENCE: Yes, yes, yes, yes, I remember some time ago I think a
week after the High court order was made that I had contact with General
15 (unclear) who asked to speak to me as I was going down the passage he send somebody when he saw me to say I'd like to speak to Colonel Semelane. I went to Colonel Mono Colonel (unclear) he was around there he had seen me with Colonel Mono. Colonel Mono raised the question of document and the that he would like to found out from me about documents. I said to Colonel Mono one
20 there's an instructing attorney dealing with the matter and (unclear) is in contact with the State attorney on your behalf and I will not get involved unless \,,iou are giving me the documents which I required then he said okay he will thereafter deal with the matter on that basis, that he will give the ins:ructions on the matter to the State attorney. The State attorney will deal with the instructing attorney and the documents are available, the State attorney will give General Mono the documents and when his got the documents he will tell Colonel Semeiane to come and fetch the documents.
JUDGE: And you have not received any?
DEFENCE: That-was (unclear) with Colonel IV ono, he ha-sn't called
30 me (unclear) Judac. The last contact I had with Mono was. with General Mono was.on this time. only .whe.n. he agreed on how the document will come to .the position of the Defence Counsel in the matter and Colonel to date has not
come to Defence Counsel with a piece of a paper to Say This an attempt to comply with the court order so really (intervenes).
JUDGE: Has Mr. Mosiza also has not received anything
according to you.
DEFENCE: Yes even the Mr. Mosiza had not received anything
Judge as I indicate to the Judge that as late as yesterday 4:30, 4:45 I was in
5 contact with him over the phone (unclear). The documents are not there and the in fact at this time he was going to fax me prove that the State attorney has this letter, he was going to fax me prove unfortunately the registry, people (unclear) to our registry knock at 4:00 and they go and for some reason the fax was not able to go through until I left. This morning I was talking to Corporal Bantu
10 finding out what is the position with the fax machine; after they lock do they
switch it off or what.
JUDGE: No it's not switched off.
DEFENCE: Yes definitely is not switched off. When I said to him but
why late yesterday I was going faxed and things were no: going through. I even went to one of my colleagues he is in the office next to Captain (unclear) asked him do we have any alternative faxes because there is something that is been faxed to me and I'm told 5372 is not receiving it and then he said to me to my knowledge this is the only number we have.
JUDGE: Alright, Madam Prosecutor you cannot submit the court
20 of with any clue that the documents were indeed hander over to the Defence
Counsel, is that correct?
PROSECUTOR: Judge I have just this letter frcr Colonel Lekutsiye
which indicates which Judge also has a copy of date: 1st June 04 which indicates that there was no report as requested so there .'as nothing that we could furnished them with that the report was furnished but there were statements recorded (intervenes).
JUDGE: What reports are you referring to nc.v?
PROSECUTOR: The IG reports regarding the (uncles-) just raised cy the
accused. This is now Colonel Lekutsiye's letter which .vas aHdresse,d for
30 attention General Mono. Judge I believe the best wayto.resfve this would be to •
.
bring thiS Matter before Colonel (unclear) next week and I -aVe General Mbino
and (intervenes).
JUDGE: Yes I also have that in mind that General •,,ilono come
and explain what he did because according to you Lieutenant Cblorel •Lekutsiye.
and General Mono confirmed that they indeed faxed to the Defence COunsel.
129 PROSECUTOR: That's why is it possible there was nothing in writing to and over and then it is impossible to hand over that's probably the in pass where the State attorney had to intervene or come to some sort of negotiating agreement with Colonel Semelane's office with by way of Mr. Mosiza so I believe
5 that this should be resolved next week.
JUDGE: Unfortunately Colonel (unclear) is here next week his
got an important matter; yes do you want to say something Colonel (unclear). ACCUSED: Ja, just to qualify my Defence Counsel will correct me if
I'm going astray but I'm the one who instructed Mr. Mosiza to get the documents
10 here in the High court and I want that High court order that I must be granted those documents. Their the board of inquiry report compiled by General Mshwala on the base of which I'm facing the charges today.
JUDGE: Yes.
ACCUSED: And Colonel (unclear) would be the last one not to
15 accept that even the witnesses for the State already are leaded to that board of inquiry board. I think I must tell the Judge that, that's aso for lack of a better word a plated (unclear) there's nothing was written. I actually worked into Colonel Whites office it was the tail end of that Colonel Mashwala's investigation at the college and. the Colonel told me she was one of the inspectors, he told me that she was printing the report and I actually saw the retort being printed after their investigation of that going so at the college which was sub w7itten. Besides even that writing that Madam Prosecutor has got in fr:nt of her does make mention that Colonel rviashwala on arrival at the college 7equestei-j that officers under instruction submit written material to him which was judida. that is what I
25 need because its on the base of those allegation that were written that I'm being charged, that's what the High court order wants and I do-'t have a scheme of that paper so that is one nothing has been no even a word not a (unclear) on the board of inquiry. On the selection board minutes or where the E matter was involved nothing whatsoever except signatures who was the sec-etary Out the minutes are not there and they are the issue again.that are in .stake according to the charges that I'm facing so they are hot giving that as iivel They claim that no minutes were taken, I'm not accepting thati
130 ACCUSED. It is in the writing that the Madam Prosecutor (intervenes).
JUDGE: Are you also (unclear) to these charges dated 1st June
ACCUSED: Ja is part of that of that, come Madam Judge again.
5 JUDGE: Are you also in position of this letter dated the 1st of
June this year?
ACCUSED: The one that's in front of the Judge?
JUDGE: Yes.
ACCUSED: I'm the one who gave to it to Colonel (unclear) yesterday
10 after I have given instructions to my to Mr. Mosiza so I just want to confirm one more thing (unclear) leave my Defence Counsel the only document I've received so far out of the three or four that I requested was the commanders investigation be conducted by Colonel (unclear) that is (intervenes).
JUDGE:
15 ACCUSED: receive it. JUDGE:
ACCUSED: And when did you receive that?
That was received, well after the court orders but I did
After, after the High court order?
Yes but it was later, late but that's the only one, hence
then I instructed to Mosiza to ask for the board inquiry which up to this point nothing has been given and the other one also involvind the (unclear) and the selection board again not shared with the minutes, what :s even strange is that the title with document which they actually truncated f:adam Judge it is the document that it is entitled minutes for the selection board on the 3r. of January but the minutes are not there it only have the signature o: the secretary and the minutes are not there and that's why I instructed Mr. r:osiza to ask for the minutes because they are an issue in the trial in the allegations against me that is not been given either.
JUDGE: Alright, I'm going to postpone this matter until next week
when Colonel Vinter is here and then you can address him again on this and yes
30 Madam Prosecutor I waa you to have the witnesses here in couTt we will then look at the Generar.MonO.' I. don't think Colonel Lekutsiye will be necessary but General Mono definitely must be here to address Colonel Vinter on this aspects and then Colonel Vinter will deo:de until when this case V. be postponed so is that is not for me to decide at this stage.
131 DEFENCE: May the court pleases, there's also on the report this matter was also made known to this court even before the trial we received the letter from the Ministers officer that the whole incident of for, the incident at ARMY college was investigated and one would image that the Minister would
5 then (unclear) need any report arising from those investigation and it was pointed out to the court that, that report would be, the Minister report would be relevant.
JUDGE: Is it one of the documents the High court ordered, is it
one of the documents entailed in the High court order?
10 DEFENCE: Well the High court order that to do with the documents
as the accused required to prepare for his Defence.
JUDGE: Yes but this investigation is just referred to Colonel is it
one of the documents the High court ordered the Prosecutor to give to the accused.
15 DEFENCE: Well by implication if the order says the relevant
documents and the court has been informed of that report as a relevant document because even this document if you want in those investigations of the Minister (unclear) report we would have had all tne copies whatever investigations were done by whatever organs of the department and if
20 (intervenes).
JUDGE: I understand to what you are say'ng but still it is for
Colonel Venter to decide on that, I just want to confirm the assessors when will you be available next year?
ACCUSED: (unclear).
25 JUDGE: Okay I don't think it is necessary for to be here it will
only be a postponement agar:. Will you be able to be nere (L.nclean. Mr. Defence Counsel you availability'. next week?
DEFENCE: Yes I'm trying to find out the relevant dates.
JUDGE: Madam Prosecutor are you available anytime?
30 PROSECUTOR:. .(unclear) course for the whole week just to make.
sure (intervenes).
JUDGE: Yes but the postponements will be early in the morning.
PROSECUTOR: Ja plus 1 if call during the morning ore of the witnesses it
might take a 'bit longer so. I v ll just determine which. dates so my 'learned
35 colleague is 'available probably between, I just figured be maybe for the late
132 (unclear) in the day before Colonel Vinter, so that we can rather run into later in the night than because I'm (unclear) like this.
JUDGE:
DEFENCE:
5 the airport.
JUDGE:
DEFENCE: Oh next week in the (unclear).
Okay we last appeared at that court where we were at
No it will be here in this court.
Yes I don't say we, I'm just (unclear) in terms of time
because the Colonel Vinter (unclear) to come in the evening when your programmes should be over and you rather (unclear) commitments if this is what 10 to consider.
JUDGE: Do you want to do this after hours then start with the
(unclear)?
PROSECUTOR: Oh what we can do maybe Judge is come together on
the Monday morning and then just decide whether is going to be Tuesday 3:00
15 or Wednesday 6:00 at night and then just schedule General Mono for that one because obviously Colonel Vinter is also bind by when his (unclear) homicide cases plus the two other Judges.
JUDGE: Yes then those witnesses are available I think it's a good
question.
20 ACCUSED: Judge may I come in Judge.
JUDGE: Yes.
ACCUSED: Judge I will like to make a request I have not talked to
my Defence Counsel about this but I would like to make a request that I should reproach the High court. Colonel Vinter has looked into this matter in the past 25 and (intervenes).
JUDGE: Yes but Colonel Vinter is the presiding Judge.
ACCUSED: Can I finish my statement Judge wit- due respect%
JUDGE: Yes Colonel I know that you requested to approach the
High cowrt again but this case cannot stand over until then. i this case to be
30 in front of Colonel Vinter next week while he will be here.
ACCUSED: Judge may I pleas& say what I need to say you haven't
heard me.
JUDGE: You must be very careful now Cocniel because will
hold you in contempt.
35 ACCUSED: Judge I want to say something (intervenes).
133
JUDGE: Do you understand me?
ACCUSED: Judge Vinter has looked in it and has dismissed it.
JUDGE: Seat down please Mr. Defence Counsel. •
ACCUSED: Why must you forced me when he • has already
5 dismissed it Judge.
JUDGE: I want him to hear the evidence and I want him to look at
the documentation.
ACCUSED: He has rejected this application in the past why do you
think he will speak.
10 JUDGE: I want him to make the decision whether the Defence
Counsel was (unclear).
ACCUSED: He has already made it Judge he rejected it I want to go
to the High give me time to go to the High court.
JUDGE: I'm postponing this matter until Monday morning 9:00
15 here in this court for Colonel Vinter to decide until when this case will be
postpOned.
ACCUSED: I'm going to the High court as I move out of here.
JUDGE: I'm sure, you are welcome to do teat, I'm sure that you
will.not postpone the case for the week or two for trial. Yc,_ will have more than
2G sufficient to approach the High court.
ACCUSED: Thank you, I'm going immediately a'ter here.
JUDGE: You are welcome to do that. Mr. Cc _irt orderly.
DEFENCE: Can i make my comments Jude.lg
JUDGE: Yes.
25 DEFENCE: The comment I would like at the State if the court allows
me is that the court has on record. the court has on record in our last appearance that the purpose of coming before court tc-Jay is to establish whether the documents are available or not (intervenes).
JUDGE: Ja but there is a disputed at this stage .,11r. Defence
30 because the Prosecutor. said ,a.coording to her .information .vhich she received from General Mono indeed. you were • submitted to that Sergeant Mono is necessary to come and explain to the court why documentat'on were submitted to you and if not why could he not furnish you with the necessary documentation. It is not now for this court without the witness•present here to tecide on that High
35 courts order.
134 DEFENCE: And also what is on record Judge is that this court is in content of the High court in pursuing this matter when the court the order is clear and unambiguous that the proceedings of the court of Senior Military Judge are stay until such time and (intervenes).
5 JUDGE: Of cause yes I'm not saying now we are continuing with
the trial.
DEFENCE: What has been happening we have record of incident of
the contents of court where for one possible reason with the other with a serious of seeking more than one seeking one of which Is this one and in those seeking
10 we continue to in contend of the High court and Defence Counsel (intervenes).
JUDGE: This is part of (unclear) this is only a postponement.
DEFENCE: And Defence Counsel and the accused by indication
approachably accomplices into this process of content.
JUDGE: Like I said this is not the trial, I'm rot in contempt of the
15 High court. My order is just that this case is postponed until Colonel Vinter is available and until the witness is available to comment, tell the court why documentation according to him he has not been handed over to you and if not why he could not hand over the rest of the documentation and by having that information on record you can go back to the High court the testimony of
20 General Mono then, do you understand what I mean.
ACCUSED: Judge may I come in here?
JUDGE: Yes.
ACCUSED: I think I'm the main person in this whole charade.
Colonel Mono is out his got it in writing in the documentation in front of you Judge where he and whoever is supporting him in this section that they have given documents. His asking my attorney that they meet at the State attorney but you now you are creating a new scenario here where involve Colonel Vinter who has already rejected my request for the documents and what's this
going to, I'm being dragged to the court every time.
30 JUDGE: General Mono actually wants to maKe, an appointment
with those State attorney.
ACCUSED: He has requested that,that they meet at the State
attorneys (unclear) but you are creating another scenario again. It looks Ilke a
dog breakfast now and-I just need those documents to defend myself in of-la-9es.
135 JUDGE: I want General Mono in court. I think that will also assist you because then you can say on record what documentation you could get hold of and it was not and why not and you can use that.
ACCUSED: I want General Mono in the High court not this court.
5 JUDGE: You can use that in your High court application again.
ACCUSED: I don't General Mono in this court Judge I want him in
the High court and I'm going to make an order immediately I move out of here. JUDGE: You can definitely do that but I'm postponing this matter
until 9:00 Monday morning. Madam Prosecutor General Mono will he be
10 available for next week?
PROSECUTOR: I believe his seating also next week but I will confirm at
first with him as soon as I finished my court schedule for today.
JUDGE: What do you mean his also seating next week?
PROSECUTOR: (unclear) one of the members on the, I will conclude
15 (intervenes).
JUDGE: On one of the (unclear) matters?
PROSECUTOR: Yes.
JUDGE: I'm not sure.
PROSECUTOR: But I will confirm whether he is available and then if
necessarily I've got the contact numbers of both the assessors and I will contact
Colonel Semelane. I even have the contact number of Mr. Mosiza and I will
inform you but if I can't get hold of them it will at least be convene on r.londay
just to get what the problem is when Colonel, the General Mono will be available.
DEFENCE: Judge I don't understand the purpose of contacting my
Prosecution Mr. Mosiza my clients attorney. What is the Prosecutor has to do
with my client.
JUDGE: Madam Prosecutor maybe that will not be necessarily to
speak to the attorney himself you may speak to the Defence Counsel Colonel Semelane.
30 PROSECUTOR: He doesn't have a cell. phone Colonel Semelane if I cant.'
get hold of him I can just leave a message with Mr. -Mosiza.
JUDGE: Okay but it is not relevant is not real!y a role player at
DEFENCE: I've got his numbers but the office number is not
working.
JUDGE: The case is been postponed until Monday morning 9:00
where Colonel Vinter will preside in the postponement and hopefully General
5 Mono will also be available to explain what happened. Thank you Mr. Court orderly. Just (unclear) on the documents for page Colonel. Monday is the 12th of July. You are available Colonel Semelane?
SEMELANE: Yes Judge I will be in court, I will be available at 9:00 in
the morning, thanks.
10 JUDGE: Thank you Colonel you are excused.
(Court postponed for Monday the 12th of July 2004)
(Court resumes Monday the 12th of July 2004)
(Court is in session)
JUDGE: In the matter of the State versus Phiri the time is 9:10 on
the 12th of July 2004. The court is constituted at this stage with myself Colonel
Vinter as well Lieutenant Colonel Mosiyane the other assessor Colonel
20 Mabusela. I have been informed at cause at this stage and as therefore not been asked to be present at this junction in time mainly because the matter that is now to be decided does not deal with the substance of the case but as I understand iS a remand or an _ application for a remand from the parties involved. Consequently the assessor is excused from these proceedings. The matter as I understand it, it comes before the court after a postponement on the 6th of July 2004 by Colonel (unclear) Botha and the question as I understand it is what the status of the Defence is in respect of the documentation that was ordered to be supplied to the Defence per the High court order of April 2004 if I recall correctly and if any what comment the Prosecution has in respect the aip. Colonel
30 Semelane.
SEMELANE: As the court pleases. Judge we` appeared before court
last week as the court has leaded there too. On the basis of a previous
arrangement with the court which arrangement is (unclear) that they would come
before court and in the event the document in terms of the High court order have
35 not been furnished to the accused. A matter would be postponed (unclear) until
137 such time that there is that compliance in the full agreement with the parties as to that compliance and the matter be reinstated accordingly. The basis of coming to such an agreement was that we shouldn't be send to be in contact or the High Court order which is perfectly clear and the court before which we appear today
5 considered that it is clearly stated the matter would be sate at the Military court until such time and the documents which the accused requires in order to prepare for his defence in this matter have been furnished by the State in terms of the said High court order. Unfortunately of fortunate." depending on which side one is standing when we appeared before court last week as the court has
10 also indicated or mentioned before Colonel Botha the previous agreement was obviously (unclear) upon apparently because my learned friend on the Prosecution side put up a statement to the fact that there has been compliments and therefore it dispute and sued is whether there has been compliance which obviously we disputed. When the court asked from Defence Counsel whether his
15 documents had been furnished to the accused he indicated that the documents had not been furnished. He also indicated Judge if I may -call correctly that we then also disputed the jurisdiction of this court to go ....to that inquiry is to (intervenes).
JUDGE: Sorry to interrupt you that is to say to determine
70 the documents had indeed been provided or not?
SEMELANE: The inquiry is to whether the. oh order has been
complied with. Yes the, what imaged from my learned ffend it %vas a sort of some partial compliances, some document had been :_rnished and other documents were not and the accused himself went on a: length as it would appear from the record explaining what was furnished whet is outstanding. It would appear or the response if I still recall correctly to my =ejection one on the matter not been postponed (unclear) two on the inquiry or .5 to compliance or otherwise but that court was that loOk what we are doing nc is to postpone the matter to the following week so that the presiding Judge in :he matter can deal
30 with this matters it. was like . situation that anticipated .'.'hen the previous_ agreement was•, reached here; was arrived yet and that i the light of the. apparent coming of Colonel Vinter presiding Judge in this rr-:-,:ter to Pretoria the following week the matter may as well left to him to consider :-_se issues so that is the basis that we are here that the court will then today Dok these issues,
35 those issues.
JUDGE: Thank you for that.
SEMELANE: Yes. Now that you are at arden for a short past what has
transpired in the mean while Judge is that as we left the court the accused went
to see his instructing attorney for the record or for emphasis sake the Defence
5 Counsel before this court is not the instructing attorney in the High court matter so the accused had to go and see Mosiza's attorneys who are dealing with the question of these documents and who are instructing attorneys at the High court matter. On the conclusion of those consultation and the briefing given to me both by the accused and the instructing attorney concerned is that an agreement had
10 been reached or has been reached between the attorney concerned and the State. My understanding I will make a letter available I may do so maybe it will help my address in the court, if the court peruses this agreement (intervenes).
JUDGE: Could I just have the date of that letter?
SEMELANE: The letter is dated 7th July giving you one full of
15 Prosecution Counsel and one for the court.
JUDGE: Yes thank you. Can I ask you to read the letter into the
record for us pleas?
SEMELANE: As the court pleases. Judge I have before me the letter
as directed to read on record, the letter is intituled Mosiza attorneys. The date its
20 7th July 2004. The letter which was send by tele-fax trans fissiongoes to State attorneys from Mr. Mosiza. Its a one-page letter. It states the reference as 12:35/ 04/z36 and the State attorneys reference, I'm sorry I correct that the State attorneys reference is 12:35/04/Z36 and Mr. Mosiza's refe-ence is Mr. Mosiza/ P0/27 it reads dear Sir/ (unclear) M.G Phiri versus the Min seer of Defence and this is underlined. Paragraph 1: We referrer to the stove matter and to telephone conversation between your Miss Makhofe and our Mr. Mosiza yesterday as well as today. Paragraph 2: We confirm that c_t instructions are to humbly request yourselves to instruct you client to contact tne relevant head of legal department and to advice them of the court order with :articular reference
3Q to stay the proceedings in-the Military court by postponing sanne.,Se.ne.deanuhtil
full compliance with a court order is finalised, failure upon we advice that • your client would be in the circumstances be subjecting all tre despondences to contempt of court which as we all know the darer consequences of which \tiould not be necessarily as we expect your full cooperation here ir. Paragraph •In. •
35 the light of our discussion with your selves we now hold instructions to attend the
139 meeting and (unclear) for the full disclosure of information or documents sort in terms of the order. Paragraph 4: and this is the last paragraph, we await your response. Yours faithfully Mosiza attorneys K.S. J Mosiza uuencode. Judge this is the letter I've just read into the record.
5 JUDGE: Yes.
SEMELANE: Now as Judge as I was saying with respect to the extent
therefore that Defence Counsel was briefed on these issues. The understanding
was convert to Defence Counsel that there is the that understanding now that
between Mosiza and the State attorney that the Head of legal division will make
10 the necessary directions in terms of compliances as indicated and that what will follow thereafter assuming this directions have convert to Prosecution Counsel and the court going in accordance with 'them the matter would be postponed (unclear). The letter goes further and there was also to me to understand that meeting or meetings will be proceeded with to resolve this speedily and that the
15 final position with the rest is to the documents and the compliance and if there is difference on that the matter will be referred back to the H'eh court to consider the question of compliance of otherwise in the event there being a dispute and looking at the optimistic side of things if those engagements are successful and there is compliance that will be communicated to Prosecution Counsel and I
20 believe also to the Defence Counsel, to my client here Ccionel Phiri such that the matter will be reinstated and the matter will procee again in that event before the same honourable court to its, hopefully to it's conclusion. As already indicated Judge in the event in the unlikely event of a dispute is to compliance or otherwise that issue would then be left to the High court tt decide. And finally
23 Judge of cause in the event of there being no compliance this agreement as
we understand it (intervenes).
JUDGE: Would pleas continue.
SE M ELANF: Yes this is just my final point Judge that in the unlikely
event I would like to rephrase myself in that fashion, in the e\;ent that the agreement is not complied with. The dare consequences. is in. gated-in this letter or be followed by way of seeking the assista.n.t.atThe. court tn7g.:ugh some kind of warrant of execution. I may indicate that of cause Mr. M s 12 vies saying. this
would be a reluctant step to take but it is circumstances that may force him to that but as indicating in the letter it will convenience -everybody as I understand it 35 doesn't look nice to be dragging Minister to court on failure comply and this
140 things get reported and the nice picture doesn't arise to the goings on in the department so there is that in the background and as officers, his an officer on the court that made the order and there are also officers here in this department of defence. I'm sure we are together to say that we don't want a negative
5 pictures of our employer to be thrown around because its an old story to people who write stories to say there's been a warrant issues is contempt by certain parties including the minister of government and all this kind of things so he did indicate that I must mention that it's a, his worry of that and that's why he uses the strong face if I were to repeat it dare consequences, those are my
10 submissions Judge on the issue.
JUDGE: Defence before I give the Prosecution opportunity to
comment.
SEMELANE: Yes Judge.
JUDGE: Is just a side to be marked so later of Mr. Mosiza raised
15 (unclear) question that was now obviously it was not mentioned it was not raised is not in the letter at least and it wasn't argued but it does touch upon the independents of the judiciary if one accepts the indication of Mr. Mosiza's letter it would appear that the Minister or the Head of legal department as the letter referees.
20 SEMELANE: Yes Sir.
JUDGE: Is in a position to prescribe to this court v,nether it shall
continue or not. Which is of cause an interesting cuestion (unclear) to background of the independents the judiciary but as I said its in a s de remark. SEMELANE: .It's a side, even if it's in a side Judce I do not fully agree,
we will be sharing views here Judge and I'll give my view.
JUDGE: Yes.
SEMELANE: Not necessarily on what Mr. Mosiza may have written or
may have not written. I'm talking now from what I've seen happening :s that there is a High court order on the matter be now the independents of the judicial.
30 The High court has made the.order therefore. the.judiciary has made and order.
JUDGE: Ab.sOlutely. '
SEMELANE: Yes that, that court that made an orter is the High court.
That order has direct implications for an inferior court at the Military court That order was made a few months ago and the inferior court has not =pilaf with
35 the order (intervenes).
JUDGE: That's your contention?
SEMELANE: It's my contention I've raised it previously Judge as you
will recall and the record could bare out and the view which the same court took
on that occasion was like when we postponed, when we postponed we are not in
5 verging the order which view with respect is with grated respect is not a correct view because therefore immediately the proceedings are not stared, the proceedings so what, therefore Mr. Mosiza seek to convey maybe a strong terms but which the representative of the State, the representative of the State agrees with, It is now the Prosecution and even the court because the
10 department of Defence because this is a creature of (unclear) seeking to implement discipline in the department of defence the Military court in the department and therefore the State attorney will represent v./here the one looks at the three arms of the State. The State attorney will represent in a court of law and in the same High court. The State attorney would instruct and with grate
15 respect Judge if the State attorney takes, to view therefore that a postponement of the matter is a continuation of the matter it is a contenticus conduct his failure to comply and that this must be brought to the at-tent:on of the relevant authorities who are responsible for conducting this prosecution. I would like to submit that those organs of the State is the State attorney represent abc _ind by
20 that view. If a different view is held then they must get back to their representatives because that representative holds the vie,v to that High court to make- an order so detours the view to the High court, the State attorney would say in the event, in the event had the instructing attorney in that court for Colonel Phiri goes to the High. Would say my Lord instructing their Counsel we agree
25 with this view that postponements of the matter constitutes none comp :once with the order and where will the position of those officers or organs who a-e, the ultimate is that therefore if the State attorney takes that view it is, and that view is in (unclear) with the view of the instructing attorney the-e. it is just that the, therefore the High court will issue those warrants.
30 JUDGE:. Alright, maybe, I don't want to engage in .ccnverset on or
.a discussion prior of the matter.
SEMELANE:
JUDGE:
over clearly. 35 SEMELANE: Yes Judge.
The point I wished to make I think --ay have not dome
Yes.
142 JUDGE: Whether the State attorney that's the question, whether the State attorney is correct or whether the State attorney indeed agrees with your clients instructing attorney that's not the question. The question to my mind is whether whatever action he supports is conveyed to the Head of the legal department of the National Defence Force whether information and such agreement that he may have entered into with the opposing party being instructed attorney for your client does that agreement bind the court? That's the question in the final analysis it is still a decision that must be made on a point that it is eliminate and who is to decide that point back to the court?
10 SEMELANE: What I gather is that, is that, is that this court wants to
put its self at risk. At risk in the sense that as I was saying besides whatever agreements its now bolds down to how this court interprets that High court order and whether the postponements to (unclear) this constitute, compliance or otherwise with that order. Of cause the decision therefore: the decision therefore
15 of cause it is for this court, for this court but it is therefore this court that would like to either take a risk officially or personally to say in the event it says I deemed I have complied because this court will not go on its own to its personal cost to the High court to explain this view. That view w:h contained if it's an official view it should be conveyed by the State attorney 87d if the State attorney
20 does not, takes a different view that is not, that is not ultimately going to be the official view conveyed to the High court., it will mean tr's count if it takes a different view in that interpretation this court will have to engages on attorneys to go and present its view and I guess it is its own cost and it s own cost because the State attorney would have taken a different view. Who e se will represent the
.75 official view of this court, it is a State attorney, who else WI represent and if the State attorney does not its back in a different way vs been trying to (intervenes).
JUDGE: I understand your argument.
SEMELANE. Thank you very much I'm please:: it is that it an
30 .(unclear) situation which the court may place its self to if its :'ffers.with the State
attorney.
JUDGE: Certainly interesting.
SEMELANE: Very interesting. very interesting, very interestino I've
been trying to, they've got a word for it where they say: you t-.ink also all angles 35 backs and forwards and cross wards
JUDGE: (unclear).
SEMELANE: Is in (unclear) thank you very much Sir.
JUDGE: Thank you very much, Major.
PROSECUTOR: Thank You Judge. Yes indeed I have few points I would
5 like to touch upon. I would have to agree with my learned colleague of the Defence that to be in contempt of a High court order certainly it does not convey the image of the Department of defence. In a suitable manner for (unclear) I'll give that we did not (unclear) on the High court order. complied with this. That was the arguments submitted last week. My learned colleagues further
10 argument that the State attorney holds that having said the matters down for postponement had not stay the proceedings, sustain certan disputes that as well apart from the fact that this opinion of the State attorneys only here say conveyed by my learned colleague. I have nothing to such effect in writing. The fact that the matter was set down to determine whether the State has complied
15 with the High court order in a reasonable period of time is the only that, giving the State a reasonable period to comply with the High court order and that I cannot be postponed (unclear) and leave the State to v,ofth of comply or not comply just to bring all the parties together and to say v.e have compied vve have not complied, doing that postponement on the 6th of July the State indeed
20 had indicated that yes we have complied and we would ke to set the matter down (unclear) trial. On that day I was also then appointee as a new Prosecution Counsel. The accused during that appearance before the honourable Judge Colonel Botha indicated that he would be going to the High court. On rn,,, eturn to the office I briefed Lieutenant Colonel Bossof who on s'de went to (unclear)
25 General Mono to indicate that they might be another High court application all so and we would like to get in writing that as far as the State is concerned we have complied with the High court order. I was informed and I also have the tette- here to say that, that which have been could be complied with was comp:ied wit-7. The MO documents stir' outstanding according to the Defence u. :hen the apploant if
30 we .look at the High court .application or not able do simply not -either.exis.t.. W. not in'.8 •position • to hand them over they do not exist so we nave 'complied with the High court order. My learned colleague then declared -.Tat this dispute We say we have complied they say we have not. Then this fete- which my learned colleague has handed over today from Mr. Mosiza's office is say that you a e like
35 all the parties together so that we can stay at the proceeding or until such. tiHe
you must stand the proceedings, I was informed on Friday that is the 9th of July telephonically by Lieutenant Colonel Bossof he had been in contact with General Mono that indeed they had got into around table with Miss Mokgale of the State attorneys office and General Mono and they have agreed that there is only one
5 more document which Mr. Mosiza would require and even though this document does not form part of the High court order we would comply with that instruction to get those documents that would be the founding letter or the founding affidavit of the riggers of wrongs which (unclear) General Mashowa'a investigated and that we would (intervenes).
10 JUDGE: In respect of whom?
PROSECUTOR: Of the original documents, I think Lieutenant Colonel
Phiri.
JUDGE: His founding statement?
PROSECUTOR: His own yes Judge. That is what I've got from Lieutenant
15 Colonel Bossof.
JUDGE: Yes.
PROSECUTOR: It is very strange yes Judge indeed I also found it very
curious 1, make sure that I have that in writing to hand in over to the court this
morning because obviously telephonic conversations between parties and
20 especially run through a third party might be also regarded then as (unclear) in that regard. Before I left the office I have not received that and on the 6th of July when we appeared before Colonel Botha the instruction was that either they oet General Mono's convey this person to the court or have a vi:tnesses evidence and there after we would be in a position to say that we will seat down and trial
25 there. The State is in a position to say once again General Mono we were only going to gather this morning to determine whether we would require General Mono to come and testify in that regard because once again there's how additional matter the letter referred to or which this court has :7 his hands dated the 7th. of July is now as far as the State concerned outdated because a new
30 agreement has been reached by Miss Mokgale and Genera. yono regarding and Mr. Mosiza regarding the only document outstanding and :hiis.was reached sometime between the 7th and 9th .14:30 on the 9th of July when I have received this instruction from Lieutenant Colonel Bossof. So as far as the State is concerned we are left with three options. We can either now postpone today 7pr.
35 later dates in this week and at later time for General Mono to convey this person
to the court under oath or we could have the State thing go to the High court and say we have complied as far as (unclear) impossible to comply and then set the matter down for trial or just the later date to confirm that this High court application of this, we have gone back to the High court to say that we have
5 complied to a later date which obviously is difficult because the honourable Judge is not residing in the Pretoria are, together with the fact of one of their assessor is on course for the rest of the year or we can postpone to Friday to confirm that this document which General Mono on behalf of the State has agreed even though it does not form part of the High court order we will hand
10 over and then on Friday we all get together again and then set the matter down • for trial. So those are the three options as far as the State would also enlighten. In terms of the constitution and the accused right to speed trial would with this matter to be resolved as soon as possible. The State does not wish to go into (unclear) the dispute in this regard but feels that the matter should proceed and
15 not necessarily just because we have been given instructions to hand over this final document and General Mono has agreed to it, for that sack we will agree to it and then proceed even though it does not form part of the High court order. State maintains that we have complied as far a (unclear) possible with the High court order documents that are existed were handed over.
20 JUDGE: So your suggestions are that we rather General Mono
testy about the compliance or that we wait until such time preferably later this week to determine whether the agreement that you have now told the court about in respect of Colonel Phiri's founding document where that was also been handed over.
PROSECUTOR: Yes Judge.
JUDGE: And your third request was with possibility?
PROSECUTOR: That we postpone it for later to a-other Senior Major
Judge just to here it for the State and then to go to the High :ourt to say we have
complied and at that stage maybe 2 or 3 weeks from now if is possible is to get a
30 date before the High court and then to get all the .parties :ack together again
and then postpone for trial.-
JUDGE: Anything else?
PROSECUTOR: Nothing else thank you Judge.
JUDGE: 1 would like to have the Defence's response; I would
35 also like to hear because this whole matter deals with (unc'ear) just an opinion.
146 The original High court order postpones the matter for a fixed time if I'm not mistaken, does it not read that the State has provided with a certain time scale within in which to comply?
SEMELANE: It was within 7 days and this is has not happened and
5 obviously there's now a strong case for contempt in the event the, because (unclear) it will pass the 7 days Judge. If the Judge would like to have any reply. My reply Judge will be very short. One the contention or the submission that the letter we have now placed on record maybe outdated given a certain subsequent agreement, Defence this agreement has not been placed before the court if such
10 agreement does exist and a copy thereof I have been furnished with to the
accused to look at so with difficulty (intervenes).
JUDGE: SEMELANE: You have (unclear) my instructions in fact to such.
Yes, yes, yes, yes, in fact the instructions are there to,
we should get that copy if there is (intervenes).
15 JUDGE: (unclear).
SEMELANE: Yes as I say I was in contact with Mr. Mosiza also until
late on Friday, if there was anything that, he would have told me and he didn't
and secondly I have already stated this in my main submissions that in the event
of the disputes is to compliance or otherwise the matter need then to go to
20 the court concerned the High court to look into the matte- it cc:Lid appear my learned friend supports that view to the extend that she says they have complied and they would like to put that. that they make that submission to the High. We would like to also go to the High where we may meet on the basis that there's been no compliance so the view that the matter goes to the High court it's the,
7.3 the Defence would support as the position that can bring finality. If I want to say maybe on the aside but maybe is now on the opinion on prE.,c,tical side of things that we, the matter may not proceed as I can see at the HiciT. court on an argent basis. I doubt it can proceed or that basis so if it goes to the High court it will go
to a normal roil and if it goes to a normal roll we are already talking months. The
30 case court cannot see an. agency in this. The agency car. only arise if the,_ if there's none compliance with the High court order and this matter is postponed' to a fix date which is a burning issue then the High court car a reason to look at on an agent basis on the failure to comply from that point of \levy when we seek to execute its order and giving that already 7days was ordered and it has not
35 been recompiled it so that wouit make a case for agency the case of Going
on a basis that we going to look at this none compliance without contend simply none compliance is just a dispute now because is now in the court it would be facing a dispute in the ordinary cause that the parties share different views into this and the court will consider this, will have to consider this. The court will have
5 to argue then on what basis can matters of this superior court to take precedence on matters that have come to the High court and be put on a higher roll, we may not make that agency and if anyone of us now in terms of my client and this (unclear) I don't think the (unclear) would go on an agent basis to solve a disagreement of that nature it would go on ordinary cause. If that is so then we
10 are looking at months already and it may (unclear) by the time other assessor had finish the course and he maybe looking at coming back now that we are at this part of the end July sometime early next year with (intervenes).
JUDGE: Thank you for pointing that out.
SEMELANE: Thank you Judge.
15 JUDGE: Any final remarks?
PROSECUTOR: None Judge.
JUDGE: Alright the court will stand down to decide in this matter
and the time now is 9:54. Will it be possible for us tc meet in the morning, tomorrow morning?
:0 PROSECUTOR: Yes Judge.
JUDGE: Colonel Semelane?
SEMELANE: I have no difficulty; tomorrow mo-ning I'll give this court
precedence.
JUDGE: I'd appreciate that it should not take much of your time,
could I ask that we meet before 9:00 at 8:30 maybe?
PROSECUTOR: Yes Judge.
JUDGE: Then we need not interrupt the matters set down rottenly
for this court.
SEMELANE: Yes Judge.
30 JUDGE: We should be done by 9:00 tomorrow morning—
PROSECUTOR: As the court pleases Judge.
SEMELANE: Yes-its not now on this arrangeme-it we are getting is
not on that question of the later agreement the member (inteTenes,.
JUDGE: Of the 9' of July?
SEMELANE: Yes the subsequent agreement.
JUDGE: Yes.
SEMELANE: And because the member went to go and consult with
this instructing attorney on that issue.
PROSECUTOR: If I do get the documents today it might have been faxed
5 through now whiles I've been in court. I can fax that through to Colonel
Semelane's office.
JUDGE: If you could do that, that would be appreciated I think if I
could make the following arrangement then that in (unclear) of any further
arguments any of the parties which to make flowing from whatever may appear
10 from such an agreement the matters then postponed to until tomorrow morning at 8:30 and if no further application has made to be heard before that finding is made then that arrangement stands for 8:30 tomorrow morning.
SEMELANE: Ja, it is in order. The member was just indicating that to
have wait further delay he would be prepared to go with Prosecution Counsel to
15 her offices to receive the letter.
JUDGE: You are free to make whatever arrangement suits the
both of you on practical terms. Right the time now is 9:57 the tape will be stopped the matter stands down, thank you.
PROSECUTOR: As the court pleases.
20
(Court adjourns for tomorrow morning at 8:30)
CASE RESUMES ON 13 JULY 2004.
JUDGE: Time is 8:35 on the 13th of July 2004. It-was indicated
to the court that the defence had something to share with the court before the
5 court makes any final decisions regarding the application brought yesterday.
Colonel Simolane?
DEFENCE: As the court pleases. Judge, my instructions this
morning from Colonel Phiri is that when my learner colleague comes this
morning, prosecution counsel I should request the letter to indicate that
10 yesterday that ...(unclear) letter were handed in there were ...(unclear) between Colonel Wnono and the state attorney in that our letter may well be ...(unclear). And after the court ...(unclear) apparently the letter was not yet available. And it is my instruction to check on the letter this morning in the event the letter is not ...(unclear) available to him and that in that fact must be placed on record that the letter has indicated from my learner friend, which were record later developments in the matter as regarding documents, has not been made available to him. And in short the letter does not exist. It is my instruction that the letter has not been furnished, in fact the court may not been told to the correct version because they have heard that the letter is not made available, confirm the fact that it does not exist, those are my instructions and I hope I have carried them out fully. As the court pleases.
JUDGE: Madam Prosecutor, if I heard you correctly yesterday
...(unclear) corrected you did not even have such documentation yourself, my
understanding was exactly that point that there has been consultations between
25 the state attorney and the department of defence whether it was indeed General Wnono ...(unclear) on that it was only in consultation and that it was not necessarily correspondence ... (unclear) in court yesterday?
DEFENCE: ...(Unclear). Ja, it is not the defences understanding
Judge, and that in fact my instructions are to indicate that ... (unclear) the court
30 itself may indicated to Phiri that for. practical purposes ...(urc ear) proceed to the prosecution counsel after :.:(unclear) to ....(unclear) that letter if that would be inconvenient. The understanding are,..(unclear) those consultation that took place were recorded' and the letter was then confirm in such ...(unclear) the prosecution counsel which were not for some reason had ...(unclear) like it is
35 either the letter is somewhere in transit ...(unclear) letter SCT.ewhere, this letter
was supposed to be ...(unclear) and this letter was supposed to be ...(unclear), that is the understanding in court and it was for that reason therefore that I indicated to court or my instructions are to have Colonel Phiri himself has seen the letter instead of the letter been send to me because I knew that my problem
5 was not going to take me long at the office and I beg therefore if my learner ...(unclear) the letter to me I may missed it and I may not get it and I may not this morning report at the office but come strait to the court that is why I cooperated ...(unclear) Colonel Phiri that or permission is granted ...(unclear) attend to obtain in the matter, thank you.
10 JUDGE: I ...(unclear) what I said yesterday that ...(unclear)
problem with your client obtaining such documentation, but I however ...(unclear) time was been so far as the agreement had been ...(unclear) it was certainly possible that it may have been and one would have like to think that it would have done so by yesterday. But the Prosecutor herself indicated that she
15 did not yet receive such documentation and was under the understanding that it may have been ...(unclear) that Prosecutor and the Defence, Colonel Phiri can come to any agreement that they ...(unclear) the proceedings as such. But I take note; your client consumption that there is indeed no such agreement and that there is indeed no such ...(unclear). Thank you very nnuch. Anything else
20 that needs to be raised?
PROSECUTOR: Judge, I can just confirm that I have not received such
confirmation ... (unclear) I did request Colonel Boshoff to indicate ...(unclear) but they could ...(unclear) court ...(unclear) the court so I had not received it as far as I was told. Thank you Judge.
JUDGE: What have to be said as a final rema7k on what was now
raised is that at best constitutes advise but you ...(unclear) attorney and its client and if I understand it correctly it is not an agreement between the state attorney and Colonel Phiri ...(unclear). Having said that it therefore does not take the matter any further in so far as the basic ...(unclear) con:ention between the
30 parties remain ....(unclear) of documents and whether it is available or if.the state . does not Want-to supply it. that remains to be resolved and it sin respect thereof. and the application for postponement by the state and tne argument of the defence that this court does not have the jurisdiction -.D des: with such postponements ...(unclear) and which to continue with ...(urolear). The rrHHt.ary
35 disciplinary act ...(unclear), ja the military disciplinary cote and the rn'HtarY
disciplinary supplementary measures act or the rules in terms of the defence act does not particularly ...(unclear) a military court the authority to postpone matters for purposes of events such as this.
But by ...(unclear) and ...(unclear) 124 I am entitled to
5 take any proceedings that is consistent with the act and may then adopted those procedures in order to deal with the situation and I refer then to section 168 of the Criminal Procedures act which simply state to the court may from time to time during such proceedings, if the court deems it necessary ...(unclear) during the proceeding that ...(unclear) under terms which the court may seem proper
10 and which are not inconsistent with the provisions of this act ...(unclear) CPA, criminal procedure act. I then adopt this proceedings and that is indeed in the first instance that we did when we postponed or when the court postponed this matter to the, when the matter first came before the court in so far as a court order was made that document had to be supplied and the court was presented with a order by the High Court. Now I have considered the argument by the defence that this court once having been ordered to have stayed the proceedings, Colonel? Ja, thank you. That this court is ordered by the High Court to not come together in this matter, not sit in this matter at all until such time as the matter between Colonel Phiri and the state in respect of the provision of the documents have been concluded in its totality. And that should the court continue to have Colonel Phiri appear before it as we are doing no,,,v in th:s court is in bridge of that court order and that it may even cons'itute contempt of that court order. Now one or two remarks that needs to be made is. that I find instructive Chief Justice ...(unclear) remarks in case of Rex vs. Heckpoort 1928 ...(unclear) division, 1065 where remarks at page 277 of Criminal trail:
Is not a game, the one side is entitled to claim the
benefit of any admission of mistake made by the other side. And the
Judges position in a criminal trail is not merely that of an empire to see
that the roomers of the game are applied by both sites. A Judge is an
3.0 administrator of justice not mereiy the figure it and ,he. has not only to see,
he has not only to direct and control. the - proceedings according to
recoanize the rules of procedure that to see that justice is done."
Close the quotation in that respect. Ciearly a role that a age pays is as the chief justice said not merely that of a bystander observing that everybody
35 remains within the boundaries of the rules. If the court has an active role to
execute in seeing that matters are dwelt with and that justice is done in the process. Having said that I'm of the opinion that we are dealing with two parallel proceedings, the first proceedings being the criminal charges brought against Colonel Phiri by the military prosecution and that parallel to that runs the
5 application the High Court for the documentation to be supplied to Colonel Phiri that he has required and that in that process then he makes use of a civilian attorney, Masiza attorneys and that process is also well known to all the parties.
I do not wish to put the one procedure before the other in and its eminence and I agree that the one is independent upon the other in so
10 far as the High Court rule that the documentation is indeed or that rather Colonel Phiri is indeed entitled to the documentation that he approached the court for and to that effect that this court will not continue with the hearing until such time as that matter had been put aside and all the aspects therein had been dwelt with. I however looked at the court order that was made by the High Court per
15 Justice Claasen and he merely orders that the order made in terms of prayer 2, 3, 4 and 6 of the notice of motion be made an order of the court. The notice of motion says that the hearing of the military judges court be stayed pending the orders approach for under prayers 3 and 4. Prayers 3 and 4 then respond to the documentation, it must be furnished and concludes that these documentation
20 or the documentation must be provided within seven days of the date of the court order. Now I'm of the opinion that when the court says as with reference to the matters of motions that the hearing be stayed.
It intents to refer to the criminal trail in essence that is to say that it deals with, it refers to the contention by the state that Colonel Phiri
25 committed certain offences and that part of the proceedings that relate to the state endeavouring to prove those allegations and with tine accused defence against such allegations. That is the primary issue that concerns this count and it is my opinion that that is what must be stayed per tne High Court order. Keeping in mind that his court has an active role to play and :hat this court needs
30 to keep taps on any ancillary matter that has an effect on.thls court, exactly such as this High Court action Colonel Phiri brought for the supplying of the documentation. I cannot understand why this court should postpone this matter sine die. The court does not deal with the substance of any of the aliec,iations by the state against Colonel Phiri, the court convenes for the purpose of
35 finding whether the defence, Coldnel Phiri in person is been properly supplied
with the documentation he requires and if not then only this has been the reasoned history of this case to postpone this matter pending the final outcome of that matter.
This court does not deal with the substance of that
5 inquiry, that is to say whether Colonel Phiri has indeed been supplied with all the documentation he required, it is my opinion that that is indeed a matter for the High Court to decide. The application was brought to the High Court, the High Court ordered that the documentation be supplied, the documentation must have been supplied within seven days and it is the contention of Colonel Phiri that that
10 had not had happened and obviously to my mind Colonel Phiri must then go back to the High Court that this order that you have made as far back as March, 23rd of March 2004 had not been complied with by the respondent's and that further relief is therefore seek. Now what further inspire me to keep a hand on this case are the time frames. For on the 23rd of March 2004, this order was
15 made, an order of the court and in terms of the notice of motion drafted by Colonel Phiri's representative they fully expected the state to have complied within seven days thereafter, which obviously has not happened for we are now in the month of July. A good four months later and st.,i Colonel Phiri is not satisfied with the respondent's compliance with the court oiler.
Certainly it would appear as if the matter was not left totally untouched and as if Colonel Phiri via his representative engaged to state in conversation and consultations and trying to allay this viihole matter. But as some stage it must either appear that a ...(unclear) had been reached and that further High Court interference is necessary for this matter to be resolved. I am
25 not going to wait sine die for Colonel Phiri to exercise his riohts. I am going to postpone this matter to a specific date with the express purpose of giving Colonel Phiri opportunity to either insist that the court order be executed in full via an application that was intimated to the court maybe fct-icoming to the High Court for exactly that purpose or if he choosc=sto abandon t:re application for the
30 outstanding documentation .then obviously that can also been indicated. to, the court on a return date to have been the case at which date the court will then decide whether either to place the, to decide on a date f:7 the matter to be continued, that is to say the actual trial in this matter or if ...(undear) by that date they can be supplied to the court prove that Colonel PT :Ti is indeed serious
35 with the enforcement of the original court order that is to SC, by means of p rove
154 that the matter had been placed with the register of the High Court. The court will then obviously look at the further postponement date in order to give Colonel Phiri the opportunity to advance this matter with the High Court keeping in mind the time scales Colonel Simolane was so kind as to point out yesterday that is
5 applicable to High Court actions.
In a nutshell the court will not postpone the sine die the court will postpone the matter for a fixed period to a fixed date at which date the court will then again be informed of the status of this matter, that is the matter between Colonel Phiri and the state relating to the documentation upon which
10 date a further decision will be made as to further postponement whether for trail or for the outcome of a High Court action. Lastly I wish to refer to the whole issue of contempt in the matter of Nkero (?) Taxi Service Association vs. Maningwa (?) and other 1998 volume 2 South African Criminal Law Report on page 166 an Eastern Cape division case page 168 appears a quotation of the
15 leaner author Melius De Villiers in his book: The Roman and Roman Dutch Law
of Injuries. Where they at page 166 divine contempt of COU7 as follows:
"It is an injury committed against a person or body
occupying a public tradition office by which injury the dignity and respect
which is due to such an office or its authority in admih:stration of just ce is
20 intentionally violated".
I further wish to refer to the letter of Masiza attorneys dated 7 July 2034. Where they in paragraph 2 requests the state attorneys to advice tne military that the military should advice the military court to postpone this matter sine die until full compliance if the court order is finalised. Which is in itself an understandable request and then Mr Masiza continues:
"Failure upon which we advice that our client would in
the circumstances be subjecting all the respondent to content of court" And then as we all know that higher consequences of v.h.ch would not be necessary. I wish to express my reservation whether the f:.-mlat and tough of
30 this .paragraph is in itself not contentious. Certainly .the court can ,for.
decide Whether conduct is indeed in contempt and the, not e. en veiled but very
direct, threat that flows from this paragraph is not appreciated Having said that
what remains to be decided as a suitable ...(unclear) to which :,is matter car be
postponed. The court suggests a date • in October. .1 -eed to know the
155 availability of the defence, accused and prosecution counsels for the week, the 4th or prefer the 6th, 7th of 8th of October 2004.
PROSECUTOR: Judge, the state is not available on the 8th but I am
available on the 6th and 7th also. Judge, thank you.
5 JUDGE: The 7th possibly?
DEFENCE: I may have missed the dates?
JUDGE: The 7th of October.
DEFENCE: Ja, that the 7th is not convenient for us but the 8th is so is
the 4th and 5th.
10 JUDGE: The 8th you are not available?
PROSECUTOR: I can move it, it is only our general courtly meeting and if
this matter takes presidency it might only be a postponement so I will still make the rest of the meeting, it is not a problem.
JUDGE: Right, then the 8th, 9 o'clock.
15 PROSECUTOR: Thank you Judge.
JUDGE: Colonel Phiri, then we will meet again on the 8th of
October 2004 in Court A. Thank you, Colonel you are excused. Thank you Mr Court Orderly, the time is 9:02 and the tape will be stopped.
PROSECUTOR: As the court pleases.
:0 DEFENCE: As the court pleases.
CASE RESUMES ON 8 OCTOBER 2004.
JUDGE: The matter was postponed until tPday with review to get
25 the prosecution opportunity to provide the defence witle. documents requested and was ordered per the Hich Court to be provided and some conditions were set. Could the defence enlighten the court was to what is the status of the provision of the documents at this point in time?
DEFENCE: As the court pleases. Judge, vie, the accused and his
30. civilian attorney and myself attended a meeting.at,the state .attorney on the 21' of September and the Department of-Defence was represented at that meeting by General Wnono. The state fair.edto provide the qc:.:ments as required by the accused in this matter and the matter therefore was rot resolved.
JUDGE: DEFENCE: Right. could we, pardon for 'interrupting you. Yes.
JUDGE: But could we be specific. The state failed to provide
which documents? The court order to the High Court made mention of a specific document, several specific documents.
DEFENCE: Yes, in fact all the documents are not provided. The
5 meeting ...(unclear) on the very first item of the Inspector's General's report, they wanted the accused to accept a certain due briefing statement and not the report itself was not provided and this was not acceptable to the accused.
JUDGE: So you are looking at the IG-report?
DEFENCE: The IG-report and Judge, all the documents listed there
10 specifically in the order and also the documents listed under documents which
the accused may require for his defence, which would then include the ministerial investigating report in respect of the rational conflict that took place at the South African Army College.
JUDGE:
15 DEFENCE: Conflict. JUDGE: DEFENCE:.
Ministerial investigation report?
Yes. Into the South African A-my College Rational
Yes?
Judge, the state attorney has since written a letter which
was to the secretary for defence which was copied to Mr rasiza and through his
20 kindness and the accused kindness we have the copy of -.7s letter and •I would like to hand it in, which indicates how the state attorney sees the way forward in this matter.
JUDGE: Thank you. Have you been proved with a copy?
PROSECUTOR: I have, Judge.
25 JUDGE: Thank you. Do you have a copy v..th you?
DEFENCE: I have a copy, Judge. Maybe I ce.-1 read the letter into
the record?
JUDGE: If you please?
DEFENCE: Yes. I don't know if whether I'm (unclear) I have to
30 ...(unclear). Judge, I'm reading a letter that is dated October 2004 it is addressed to the .secretary for defence, Department of l'e.fence, Private Bag X137, Pretoria. It is faxed to (012) 392 2811 for the attention of Brigadier General Wnono which is incorrectly spelled as W-n-o-h-o. stead of N-0 at the end. The title of the matter is M.G. Phiri /-Minister of Defe-:e.
157
1. "The meeting held on 21 September 2004 at cur offices, at our office refers."
2. "I kindly confirm that it was a great during the above mentioned meeting that the hearing at the military court would be postponed ...(unclear) until
5 the issues of compliance/non compliance has been sorted out."
3. "In view of the fact that the parties failed to reach agreement on the issue of the compliance with the High Court order, I am of the opinion that you should approach the High Court for an order that the respondent have complied."
10 4. "You are kindly requested to approach the AC, - In not sure what the AC
means there. The Army Counsel? Okay - The Army Counsel is AC for the Army Counsel and request a copy of the final report referred to in the decision brief to the AC on the alleged ration disharmony at the South African Army College. Alternatively an avid davit by the person who was furnished with the decision brief confirming that the decision brief constitutes the final report referred to in it. I am of the view that such report or avid davit will be used in support of the application to the High Court. "
5. "And lastly I trust the above to be in order ah,i I wait you- urgent response."
It is sianed by A.J.F Mogale, Ms, for the State Attorney F7etoria. It is copied to marked Stratihof (?), incorporated attorney for the refe-ence of Mr .,lasiza. J100/04. Mr Masiza previously practice on his own acco..:ht; he has ncr.v joined this company. And this letter has been furnished to asked therefore and we wish to file it as of record and the contents speak for themselves. I understand this advice to be saying that if the state continues to ma'ntain that they have complied, they have to demonstrate that to the High Court and seek to exonerate them from the order of the particular court. ...Lnd so far as these proceedings as well as concerned that the question of the, which bogged us
30 previously as to the staying, -compliance with the High Court order in to staying. the. proceedings was a military court, whether postponement' toa fix.da:e is in compliance or is in contempt of that order. As the state att:-_--ney indicates it was agreed at that meeting that compliance would entail postpcherneht ...(unclear) and this conformation is then provided. And the stare would need that
35 ...(unclear) decide to approach the High Court to be able say on oat:- that
they have complied and until this compliance even with the order to state the proceedings of the military court I don't think they will be able to take the matter further to the High Court. Without facing charges of contempt. Finally Judge we request then an postponement ... (unclear) until this state decides to resolve
5 the matter either in accordance with the state attorney's advice or in any other
manner they think the matter maybe taken forward. This is our submission.
JUDGE: Thank you very mush.
DEFENCE: Thank you.
JUDGE: Madam Prosecutor?
10 PROSECUTOR: Yes, thank you Judge. The state just wishes to start off
with referring to the courts ruling on the 1 3tn of July. Where the court referred to the case of Rex vs. Heyworth, indicating that a trail is no game and that it seems to be dealing with accused maintaining that the state has not complied despite the -fact that the state-ha-s--oo-n-tented. it has complied. Eve7, on the 6th
of July and
13 proceeded to do so on the 12'h of July before this honoerable court. On that day this court also rolled that the case will not be postponed ...(unclear) that it is going to be postponed to today for the accused either to bring prove that he is seeking relief from the High Court or that he is going to atandoned that avenue and we then therefore postpone today for a set trial date. Now the state would
20 like to content that when the High Court ordered the department of defence to hand over certain documents those were: The SA Arm?. IG-report, the OC's investigation that Colonel Drost ordered, the B-mat intervehton repOrt retarding the incident at the Army College during January and Febr,....ary 2001, the fact is that the Department of Defence indeed handed over these documents, specifically the first and the second set of documents on the S'h of April 2004.
A copy of which is with the prosecutor when it was handed over by signature of General Du Preez to the offices of learner colleague. In subsequent letters and avid davits that is an indication from the Department of Defence was that the IG-report is not the c-e that the accused
30 necessary is the one he wants. The states .centention .is Thetis what there is, it
does not exists the report that he contents there - That vv-a-e no minutes held on the B-mat intervention report which he also requi ed and that therefore the test is that the High Couit when the High Court hands down the orders whether it is reasonably and fairly possible to comply with it and the -state has -done so.
General Wnono on the 22'd of September faxed a letter to the office of Legal
Advice and Litigation at Legsato Thaba Tshwane in paragraph 4 indicated:
4. "After a lengthy meeting and despite everything reasonably possibly done by the department of defence to comply with the High Court order the
5 applicant is of the view that the department did not comply with the order and that it failed to provide certain documents requested in particular the document entitled SA Army Inspector General's report involving period ...(unclear) at the South African Army College, February to March 2001."
5. "The applicant has indicated that he intents to refer the matter to the High
10 Court for intervention."
6. "It is the DOD's submissions that it has provided the said document and therefore complied with the High Court order."
In spite of this, in spite of what it previously be contented by the state in this court the court gave a very reasonable and fair amount of
15 time for the accused to bring in a High Court application to this court today. In the absence of such prove from my learner colleague the state would submit that it is in a position to set down a trail date for any time later this year. The state would further submit that this honourable court has an independent traditional officer is not bound by advice given by the state attorney. certainly the state is
20 going to argue that it is ...(unclear) bound by what the state attorney has advised because the state was not a party to that round table conference. The state is not intending to bring and application to the High Court because we maintain that as far as reasonably possibly and in all fairness we have complied with that order. I have also received documents from my learner colleague when they
25 also request a ministry investigation which is the one ministry refer to this court. Now the state had already on the - let me just confirm that date. On the 8th of September, a month ago indicated to my learner colleacue that it is not in possession of such a ministry inquiry or investigation eport that it is not intending to use such a ministry investioation report in prosecuting this matter.
30 That. the accused . has advised :o submit a formal request at the normal 'channels of 'communication to the ministry of defence to obtain such report as this report is not one that is spec:if daily ordered the High Court to be submitted. The state is under no obligation to do so. The state fails to see why it should do the viork-Of the defence counsel. If this were
35 mere absence without leave case and the accused was contending that due to
160 impossibility and ill health he was unable to be at court, would they seriously expect the state to arrange medical witnesses and obtain medical reports? No. If that is the documents that my learner colleague wishes to use then he should obtain them. It is not ordered by the High Court, the state does not even know
5 whether such report in fact exists. What we do have is a letter from the office from the minister written by Colonel Matkwalisa (?) who is not at the minister's office anymore. He is currently the chief of staff at Legsato Thaba Tshwane and on course since March this year.
Which indicates that he hereby respond that he has
10 received the letter from Lieutenant Colonel Phiri and that the matter is receiving attention. It doesn't indicate that an investigation or inquiry is going to be made and that a report is going to be submitted at a later stage. So that is mere ...(unclear) and an assumption that has been made and now the state has to comply with something that we don't even know whether it exists. The state
15 would further content that the accused is non avia'y (?) when he is coming to this to this court today that he does not have prove. In a letter that was faxed by my learner colleague yesterday the accused indicate, he indicated that the accused is and I quote: "Busy drafting instructions which will indicate the extend of non compliance of the DOD with a High Court order herein." Now the accused has
20 already contended that he wishes to go to the High Court cn, the 6t.' of Joly. He repeated this on the 12th of July and repeated this on the 13th of July after the court had made its ruling. He seems to not then have done anything about it. That ship has sailed. That avenue has passed. Now we must once again postpone this matter, which has been outstanding since March 2001. There is
25 case law when an application is brought before a High Cc._ot. Every accused has the right to fair trail, which includes the right to have a tra'i started and concluded without unreasonable delay. This right does not exclude the accused from applying to the court for a postponement of a case that an application can be brought to the High Court or the constituticoal court regating a constitutional
30 aspect relating to .this .case.. •.
The accused has indicated that he wishes to do that on the 6th of July already, failed to do so. In exercising the tra:: tional digression to adjourn a case the traditional officer must according to Jud:2e Vera, in state vs. Gerites (?) in 1966 South African Law Report volume 1 case of :he Western
35 Cape at page 754 ...(unclear) bare two principals in mind an i I quote: 'The one
is that is that it is in the interest of society and accordingly of the state that guilty men should be dourly convicted and not escape by reason of an oversight or mistake which can be remedy. The other no less valid is that an accused person deemed innocent is entitled once ...(unclear) to be triad with expedition.
5 The state therefore would argue that to allow another postponement for the state to bring an application to the High Court or the accused perhaps then once again to try and exercise his right to approach the High Court would be unreasonable, is not in the interest of fair and just administration of justice and should be disallowed. The state will content that the matter now be postponed
10 to be set down for trail so that the trail still maybe finalised within this year. As
the court pleases.
JUDGE: Thank you. Any reply?
DEFENCE: Judge, I'm instructed to ask a copy of that letter which
she read, an earlier letter by ...(unclear) on the report of ...(unclear)?
15 JUDGE: Which was dated the 22nd of September, is that correct?
PROSECUTOR: That is correct, Judge.
DEFENCE: Yeah.
JUDGE: Okay, could you pass it over to the defence, please?
Would you like to have a moment to consider it together with your c'ent?
20 DEFENCE: Yeah, okay we can stand down to consider it.
JUDGE: Right, time now is 9:35. The tape be stopped, thank
you Colonel Phiri, you may withdraw.
(Recording machine was switched off)
JUDGE: In the matter of the state vs. Phiri, t-e time now is 9:55.
Colonel Simolane?
DEFENCE: Yes, sir as the court pleases. Jus: for myself Judge,
just, are we on record because ...(intenienes)?
30. JUDGE: Yes, we are.
DEFENCE: Because the other day - I 'addressed the
turned up the matter was not on record, we had no recort:. Ss:m at least it
t iit
...(unclear) somewhere a piece of paper. Judge, I've heart my learner friend.
And where ...(unclear) for the short adjournment, a fair occasion • to take
35 instructions on this letter. Before replying I can only indicate immediately that
162 the instructions are to place on record that the order of this letter General Wnono is bona vide ...(unclear) by my client and yes, the bases thereof is that Mr, General Wnono is not giving a true reflection of the events relating to that meeting that is referred to. Judge, I got a document in my hand, it is the only
5 copy we have. This document geminates from Legsato Thaba Tshwane. It is General Wnono brought this document to this meeting, according to my instructions dated 11 August 2004 it is from SO1 Legal advice and litigation Legsato Thaba Tshwane to see ...(unclear) for the attention ...(unclear) personnel duplicates General S Wnono. The title is leading Lieutenant Phiri by
10 the minister of defence and others. It reads:
1. "Instructions during the meeting at the officer of the state attorney on 10th instant, meaning 10 September with regard to above mention matter refer to attach hereto a memorandum."
It is a memorandum, Judge, it is a memorandum from Colonel White addressed 15 to Colonel Mokalake (?), dated 28th February 2001.
2. "It is a avid davit by Lieutenant Colonel Laurens dated 11th August 2004 with regard to JCSD Assessment Board held on 30th January 2001." This paragraph is relevant from the point I'm making.
3. "The letter from the white student arouping could still not be found. An
20 avid davit to that effect would be requested if the letter .s not found soon." It is the signature of the author of this document. Now my :nstructions is that, how can my learner friend make a submission of compliance when clearly the letter refer to, this document from Legsato Thaba Tshwane, he letter from the white student grouping could still not be found. An avid davlt to that effect will
25 be requested if the letter is not found soon. Neither do v, e have the letter according Colonel Phiri, neither does he have this letter, nor does he have an avid davit to that effect as indicated here, he doesn't have those documents and I could see my learner friend is waving something, I'm not sure what is that but the Colonel Phiri doesn't have the document as of now. The: point has been
30 made. I now proceed to the issues of the law.as. raised. by my :earned friend.
I take the issue Judge;thiS seria,„s misdirection to say the state attorney is not partof the state, the, even paragraph 3 of This letter, cf this letter of ... (unclear) we have here is not one of the ... _unclear). This letter of 22nd September, paragraph 3. On behalf- of the DOD on behalf of the Department of Defence that is what the DOD stands for as I understand it, on
behalf of the Department of Defence the meeting was attended by the state attorneys representative, Ms Frieda Mogale, Brigadier, General Moswala (?), Brigadier General Wnono and Colonel Mokalake. Now those people represented the DOD according to this letter and part of the state ...(unclear)
5 that is opposed to Colonel Phiri. So if the parties therefore agree as they did agree on those matters that they agreed upon and they deliberated in the manner they deliberated my submission therefore is that the state attorney is part of that, of the state. And therefore the state is bound by that version; the state is bound by that version. And that diffusion opinions of the state attorney
10 as the leader of representative of the state binds the state.
That is when the one authority in terms of the law and the relevant instruments that is above that terms of legal advise would be the chief state law advisor. And the matter may never be referred to the chief state law advisor but this view, the view of the state attorney is binding to the parties,
15 in so far as the parties in the parties of the state here is concerned. That is my
submission. So with greatest respect I disagree with my learner friend when she says, you know the opinion of the state attorney was maybe regarded, disregard and officially that cannot be the position that vie can go along with because all the consequences financially and otherwise be incurred will be
20 incurred in official capacities and not in a personal level. So officially therefore I submit with respect the state is bound to the legal views of the state attorney as to how this matter may proceed. Judge I will try to assist the court now on the submission by my learner friend that as far back as July the Colonel Ph iri was saying he is going to the High Court.
25 That should be looked with respect Judge, in
perspective. This was in the absence of interventions, there were interventions that made the accused or Colonel Phiri not to go to court then because of this meetings that were going to be set up in order to resolve this matter of compliance or non compliance. And hands this long postpcnements the pa ties
30 should try and meet and •.find. each. other so it would no: have served any purpose on the one hand to have gbhe to the High Court and on the other hand this meetings have to take place in order to try and resolve Ir-.S questlons 01 non
compliance. I want to take this point further, so far as to now Colonel Phiri is
concerned. The Judge, I submit here with respect that the only bases that-
35 Colonel Phiri can go to the High Court in the absence of compliance is to go and
demonstrate content say to say the other parties in content failing to comply with the High Court order. He has already gone to the High Court, the remedy has been provided, an order has been handed down by the High Court that certain things needed to be done by the state.
5 The state hasn't done those things. And as the state
attorney correctly advises is that if the state maintains as it was doing to say it is complied, the authority that can deal with the issue of compliance or otherwise have argued on this issue previously before this court to make the point that in fact a competent court to deal with the question of compliance or non
10 compliance is the court that made the order to say ce7tain things have to be done. The court will have all the papers that was before it, it made the order. It is then that court that is competent to say in the event of a dispute as it is at the moment, to say there is compliance here. So Judge I submit therefore that the state attorney is advising now to bring this matter to finality to say if you
15 people, because she listen to all of us, things were pointed out and where this non compliance but now obviously the state attorney is not a abettor to say the state attorney, can make a decision to say okay, I have heard you, I have heard you, I have heard all this ramblings, you have complied.
Now she has, part wise is given accordingly therefore to
20 say if the DOD is still persist with the view that it has complied then it must convince the court that made the order, it must convince :re court that made the order that it has complied. That court will make relevant orders accordingly having heard the DOD on the issue. And the matter will ce resolved if the state has not complied obviously they will be found to have been in content and it is another issue. And so far as the accused is concerned Ty Lord, as if now the state is in content, it has failed to comply with an order of leet to March, the order . to comply within seven days, this has not happened. And it is rec.:rettably stolid the proceedings, the proceedings in this matter was state, military count until this full compliance and this has not happened. And the a.:oused is not amused
30 about it because obviously this, well this kind of case han.gingoierhis
•effecting his career and he has gone out of his way, he has gone•out•of his way • to ask the assistance of the Hiah Court to get the state t: provide documents. Today is the 8th of October the year of our Lord 2004, the Documents have not been found, they vanished. Accused has gone, his own expense, it was my
instructions that he is going to apply to the secretary for defence for legal assistance in respect of the cost he has already in credit in getting this orders.
And the submission is relevant to the extent that in the event and after the court has considers this matters on today and in the event
5 the accused or Colonel Phiri in polite language has had to go to the court again to say my Lord you have made an order it is held in content by the DOD, he will need legal assistance for that. So from the practical side of things also and given the position taken by the state that it has complied one would like to imagine that the state will go to the High Court to say we have complied. And it
10 might save reduce my client cost to some extend but in either way he would need to apply for legal assistance and it is an aspect which, I respectfully ask this court to consider in that regard and you know if the accused has to take those, that approach of going to the High Court now that after all this meetings that are recorded here, one in September 10, one 21 September, they failed to
15 resolve the state has not complied.
Judge in essence I have just said that gc ng to the High Court as my learner friend has indicated that the member indicated far ...(unclear) July that he is going to the High Court, he didn't do so that is for reasons for the meetings that are going to take place. Now we are speaking
7,0 with hindsight to the benefit to the meetings that have taken place now where all
the parties were involved, the meetings did not resolve the issue. i have instructions that the state has not complied and we have an opinion from the state attorney, and advice as part of the DOD if that meeting to say .the way forward should be to go to the High Court, stage go to the High Court and bring this matter to an end. I submit my Lord, this advice is ... !'r-Icliear) and that this court should look at it favourably and deal with the matter on the bases that the state will seek to demonstrate to the relevant its compliance. And that if they succeed to do that then the even the stay would be discha-ged of this proceedings that this matter can then proceed that he, v,. he is ...(unclear))
30 holds failing to provide documents this proceedings are stii. stated '.vith respect, Judge they are still stayed in terms of that order. And l•wo2d like to ...(unclear) argument in that regard but this court is bound in to-Ts of stay in this proceedings by the High Court to stay in this proceedings ..-,tit this compliance. This compliance hasn't happened, hasn't happened an therefore to say
regardless, if I understood my learner friend submission correctly, that Judge, please fix the matter for trail?
That it runs in the phase of the High Court orders if this honourable court wish to proceed along those lines to say come with me, I'm
5 fixing this trail and lets go ahead. And this all-good argument on the finalisation of case, I don't find fold to my learner friend on that the authority is clear that you know if there is a case the machinery is set in motion. These cases must be finalised promptly. But with respect one can't have ...(unclear) the state can't do that. The state can from the ...(unclear) with the whole question of charges
10 pursuing my client they want to charge my client, they don't have the evidence to support those charges, the accused wants further information of the charges are the documents ...(unclear) those charges were supposed to be founded, the state can't provide those documents. The accused is set to go to court so ... (unclear) Judge, the state can't have its cake and eat it. If it can't provide the
15 documents it is a clear option to abandon this exercise of saying do you want to
charge Colonel Phiri for ...(unclear) conflict at the South African Army College.
And to save unconvinced and cost, heavy cost which have brought us together here to sit and look at this. This are my submission Judge, I'm asking the court in its good judgement and ...(unclear) judgement to
20 find the way forward which in our submission is that the state must demonstrate the High Court its compliance and failing thereto the proceedings in this court remains stayed and that in the event of a postponement and in compliance with a High Court order we have postpone the matter seeing deer until this matters are finalised. These are my submissions, my Lord.
25 JUDGE: Whilst you have the floor, Colonel.
DEFENCE: Thank you, Judge.
JUDGE: Please remind me.
DEFENCE: Yes.
JUDGE: The High Court order refers to, yd.: refer to it now in
30 your address.
DEFENCE: -Yes, Judge.
JUDGE: In your argument of the seven dai,s within which the
state had to comply with the instruction or the court order.
DEFENCE: Yes, Judge.--
JUDGE: What was the instruction by the court failing the seven
day period, what should happen?
DEFENCE: Well, it follows that the proceedings of a military court
would be stayed until this compliance. It means basically we should have well
5 if the court would remember the argument we have had previously on the postponement, the fixed date that is what has in a way kept this proceedings alive ...(unclear) to the High Court order because after that seven days and failing to comply this proceedings should have continued stayed without us appearing before this court until this compliance. And then the compliance
10 would have been demonstrated to High Court with complied in the event of a
dispute as to compliance.
JUDGE: Do you have a copy of the court order with you by
change?
DEFENCE: Yes, we did file it to the court here: I don't know whether
15 this ...(unclear) there are now to many files I have in this case. So I don't know
whether this one I have here will have it within. We have cot ...(intervenes). JUDGE: ...(Unclear).
DEFENCE: Okay. This is the, ja, ...(unclear) order. Okay, the
order as ... (unclear), ja the order Judge, there is a draft cyder here, which has
20 been finalized, ...(unclear) stamp here, 23'd. The order made in to-ms of previous 2, 3, 4 and 6 of the ...(unclear) motion. Order rhade in terms of that. 2, 2 says:
"The (unclear) of motion that the hearing in the military
court Judge, reference number 98007693PE, ...(unclear) Phiri, G.1M Phiri be state pending the orders paid for under 3 and 4."
Now 3 and 4 are orders declaring that the:
`Applicant is entitled to have access to documents and or information held by the first respondent, tlr a: is the rnister.
Alternatively fifth responded in the applicants exercis cg or protect,ng his 30 right in a trail, pending the military court"
Access to documents and•re-information. Order 4, 4 says:
"That the fifth respondent or the ffth responder: then would be Major H.S. Pretoruis, alternatively fifth respondent be ordered -that is .a information officer - be ordered and directed to furnish apr. licant
35 with the following documents: Namely: South African Army Inspector
General's report involving Phiri and others in the South African Army College, February to March 2001 "
4B:
"The commanders investigation report has ordered by
5 acting commandant of the SAM College, Colonel Edward Frans Drost to
look into complains against Lieutenant Colonel Phiri, March 2001."
My instructions are Judge that that aspect has been complied with, the Commander's investigation report.
JUDGE: It has been?
10 DEFENCE: Ja, that has been complied with, I retried my earlier
statement.
JUDGE: Thank you.
DEFENCE: That no compliance what so ever. That report was
furnished. 4C:
15 "The ...(unclear) intervention report, intervention at the
South African College January, February 2001 by the British Military Advisors to SA National Defence Force."
That is 4, and 6, and 6 finally, 6 would be:
"Ordering that the first respondent pays the cost of this
20 application."
JUDGE: All right. Could we just return to the documents referred
to in paragraph 5, ... (unclear) report, you read of the OC's investigation and the B-mat intervention of the court, has that been supplied?
DEFENCE: No, Judge.
JUDGE: Are those the only three documents in contained in the
order?
DEFENCE: Yes, and in paragraph 4, Judge where they refer to
South Africa Army Inspector General's report then B. the Commanders
investigation report which has since been furnished and the B-mat ...(unclear)
30 invention which is not been furnished. Those come under 4. That ministerial investigations report we referring it under 3, in order decia7ing that applicant is entitled to have access to documents and to informatic held by the first respondent, by the minister. Alternatively.
-JUDGE: Right.
35 DEFENCE: Yes.
JUDGE: I just wanted to confirm the content of the court order.
DEFENCE: Yes.
JUDGE: Could you just on the face of the draft of the order that
was finalised, the paragraph that refers to the seven day time scale
5
... (intervenes)?
DEFENCE: To the seven days?
JUDGE: How do that read?
DEFENCE: Judge that paragraph does not appear in this draft order
because this is just the confirmation of the draft order. It is, it says that there is 10 a paragraph 2 of this order, which says:
"It is further ordered that if the respondent wish to withhold and of the information or documentation sort that such be specified to the applicant and the respondent shall at the recommencement of the hearing prove special grounds why the material
15 should not be furnished to the applicant."
The, I seem not to find the seven days here in this papers furnished to me. Or within seven days, ja, sorry Judge. Paragraph 4 that paragraph 4.
JUDGE: Yes.
DEFENCE: It says:
20 "The fifth respondent alternative", fifth respondent be
ordered and directed to furnished the applicant with the following documents, namely they are named A, B, C." The Judge will have them: "Within seven days of the date of the court order.
Within seven days. That compliance should have happened within seven days. Then five would say:
"Granting the applicant such ...(unclear) relief th:s court
deems fit."
5 is not mentioned there in terms of the orders.
JUDGE: All right.
30 DEFENCE: But the specific order there is .unc.er 6 on course. First
...(unclear) pay the cost. So nothing (unclear) served aver seven days, within
seven days they must comply of the date of the court orde-
JUDGE: Am I correct in saying that the cc _r: order in the format
does not have a return date?.-
DEFENCE:
it is a final order. JUDGE:
DEFENCE: 170
Yes, yes it does not have a return date, Judge. Correct
Mr Court Orderly.
It is a final order Judge. It is a final order, there is
5 somewhere that ... (unclear) okay, the what was this? Ohm. ...(Unclear), the
order is final, Judge. The order is final so the, it make sense therefore to say the state should then go to the court and say we have complied.
JUDGE: All right, now what, this matter has been dwelt with
previously by this court.
10 DEFENCE: Yes, Judge.
JUDGE: I would like to be open on one or two aspects in respect
thereof that I found ... (unclear).
DEFENCE: Mm.
JUDGE: And that is the fact that if the order as we have now
15 seen does not contain a return date and you agree that it is indeed a final order.
DEFENCE: Mm.
JUDGE: It would mean that the proceedings instigated by your
client before the High Court has been finalised, the only aspect outstanding is compliance with the instruction but there are no further proceedings pending in
20 the High Court, is that correct?
DEFENCE: Yes, yes, what we discussed in effect was discussed at
the meeting, that is why I'm able to answer this without nc hesitation. .
JUDGE: Yes.
DEFENCE: We considered the order.
25 JUDGE: Yes.
DEFENCE: At the last meeting. I was not on the one on the 10th; I
was at the one of the 215t or so. The question as to how the order stands, what
the orders says, the order clearly says that must happen. If that paragraph 2 of
the order, if assuming to say they have complied, assn_.ming that that is the
30 situation and we, as they say which is denied of course they come before you Judge and say• look if complied but we for certain reasons we did not want to give in certain documents in terms of that order too. If Pn:ii was going to challenge that then he can challenge it at the High Couint: you see. Certain documents were withheld for X: .Y .reasons, I don't think they are making good
35 reasons then the High Court would consider that. That should be the bases
why he can go there, if they are saying to this court we have complied, we didn't give in certain documents for this reasons in terms of paragraph 2 of that order. But then he would have had to go to the High Court and say look its not in order, this exceptions they are taking are not proper, they must furnish those
5 documents, there would be a reason. But now we are dealing with a final order, now again if the state now says we have complied then if the other side, the member says you haven't complied then the obligation is up on the state to go to the High Court and to have complied with the order and the accused then would have to demonstrate the High Court. Because the High Court would then look
10 at in what way have you complied, will say if the state go to the High Court and say we have complied be have provided this, we provided this, we provided this in terms of the order we be need ruling that you have complied.
JUDGE: Mm.
DEFENCE: This ...(unclear) look into the stakes and say look we
15 have complied. Of course the accused will have to go ...(unclear) to say why but the ruling would be made to say okay, this is complied, this is non¬compliance. So now I then, that is why then I agree with the state attorney about that if the state maintain it has complied, ...(unclear) to the declarations of the accused then the state can only get itself out of this by demonstrating the
20 compliance to the High Court and get a ruling and that ru'Ing will open the flight gates of this matter. Then the state will be set aside, ruling as compliance then nobody can go anywhere unless the accused take it to a certain court of appeal. Then it took open for this court to deal with the matter. Now that, now as I have already argued my Lord, Judge is that if the accused has to go to the High Court
25 at this point it can be ...(unclear) to say to the court the state has failed to complied with the order of March so and so. They could provide with seven days and in fact I've gave them more time acing to March even up to now they haven't complied.
JUDGE: All right. May I, if we then agree that the order is final,
30 there are no proceedings currently in process before the High Court we reeclto re-visit the wording of the order that, in paragraph 2 says that if the respondent wish to withhold any of the information of documentation. sort that such be specified to the applicant and the respondent being the state in this instance shall at a recommencement of the hearing provide special around why it should
not be furnished. Now the point that I would like to hear you on, is
...(intervenes).
DEFENCE: Yes, Judge.
JUDGE: If the order was finalised, the High Court has now
5 concluded its work in respect of the application brought by your client what does the learner Judge refer to intent to mean recommencement of the hearing, is that then this court?
DEFENCE: As this letter, Judge would show, this by ...(unclear)
September, the paragraph 7, that was an open issue that meeting, in fact it was
10 agreed at that meeting before I read this. It was agreed at the meeting that the
matter would be referred to counsel. To advice on that, it might have just occurred subsequent to the meeting that instead it would serve no purpose in stead of briefing counsel for an opinion, the state attorney advices that if you maintain if complied go to the High Court and get yourself after them, is to make
15 need to go about the executors way but I remember at the meeting it was agreed that, the, an opinion would be sort. The meeting ended in anticipation of further meetings that there would be an opinion sort in this, on the issue that vie would consider the advice ...(unclear), it would appear that approach was abandoned after the meeting, after we ...(unclear). Paragraph 7 of this letter says:
20 "The other issue that this two parties disagreed upon is
the interpretation of paragraph 2 of the High Court order. The issue is
whether or not the wedding, I quote: "Recommencement of the hearing"
refer to the military court or the High Court."
It is our interpretation that it refers to the military court but that matter was to
25 refer to counsel for an opinion. Ja, the point is that the, if the order, this recommencements is in the contests of a situation where they say we have complied but we have not furnished the member with cer'.a.n documents for this reasons. Now that presupposes that if they say they have complied and it is now my interpretation ...(unclear) before this court and they say v,e have
30 complied but we have not furnished the member with certain documents for this special reasons in terms of that paragraph of the orde-, recommencements would be before this court, because it would be on the bases of compliance but for the two, for certain documents that have not been furnished, now this is not the situation here. The state is not claiming to furnish the member with certain documents for certain reasons. ...(Intervenes).
JUDGE: Not furnishing him for certain reasons.
DEFENCE: For certain reason.
JUDGE: Yes.
.DEFENCE: It is not that situation so it cannot be an issue here, in
5 fact the proper interpretation of the status of this court is that the matter is stayed and we would not have been before this court had the court went along with our earlier argument and interpretation of the stay that it means a postponement must be ...(unclear). If we postponed ...(unclear) from the word go vie would not be here today because the ....(intervenes).
10 JUDGE: That is neither here nor there.
DEFENCE: Yes.
JUDGE: The point here is that you say that the paragraph 2 is not
really applicable hands this court should not reconvene for it is not a question of the court not wanting or the state not wanting to supply the documents.
15 DEFENCE: Yes.
JUDGE: It is something else?
DEFENCE: Something is, Judge.
JUDGE: And that else is?
DEFENCE: It is something else, it is not, tha: else is they are not
20 supplying with the documents.
JUDGE: What was the reason forwarded by the sate?
DEFENCE: Well they haven't complied, they claimed they have
complied, I've demonstrated that the haven't complied. They haven't complied so it is not this question that they have complied because if this thing happened without any need to come here it would have been clear like the state attorney is saying that if the meeting ended on a disagreement cr compliance or non¬compliance then the party that says it has complied, that party must satisfied the court, the High Court, the court that made the order that it has complied.
JUDGE: So if I understand you correct" the question is
30 according to the defence ...(intervenes):.
DEFENCE: Yes, Judge:
JUDGE: That the state complied in part an on the outstanding
documents have not yet complied?
DEFENCE: Yes.
174 JUDGE: But I have not yet heard from the defence what reason has been forwarded by the state, if any, why such has not been complied with? Have you received any such reason either in terms of paragraph 2 of the High Court order or any other reason? That is what I would like to know?
5 DEFENCE: Judge, the, for example the ...(unclear) Inspector General's report, if I remember correctly the state wanted to see the debriefing without the report itself should service, in other words they want to put their own interpretation, that they don't want to submit the army's inspector generals report because they debriefing which they are providing should service, in other
10 words ...(intervenes).
JUDGE: All right, may I just interrupt you there?
DEFENCE: Yes, this ...(unclear) the decision brief that is the word
use as the Colonel Phiri is correcting me there, that in fact they issued this word
decision brief, they want to say the decision brief, if it stands in stead we must,
15 he must accept the decision brief in stead of the army general's report which is stated in so many ways in the order that the army is not a general's report.. They produced what is called a decision brief, please accept the decision brief. This is just as good, it has got everything that you may need.
JUDGE: Right, so what you are saying is. They say according to
20 what you have understood from them ...(intervenes).
DEFENCE: Yes, Judge.
JUDGE: That the IG, the Army IG-report itself will not be supplied
to them, take this document in stead?
DEFENCE: Yes. They say take this in stead because we don't
have the army inspector general report, apparently they ale not able to locate it like this. They, it is a question, we can't find the army inspector general's report now, just take the decision brief and run away. So we want to ...(intervenes). JUDGE: So. All right. Then the other document, is the B-mat
intervention report, what reasons is been forwarded to you in respect of that
30 document not being provided?
DEFENCE: May I take instructions?
JUDGE: Sure.
DEFENCE: Yes, in that document, in that avd davit by Laurens,
Laurens, yes, avid davit by Laurens is the answer to the udgers query- there. 35 I'm just finding the avid davit. Ja, okay. Judge, let me read into the record the
175 avid davit by Laurens, it is a short avid davit? Maybe it will answer this question: Avid Davit.
"I, 77872315PE, Lieutenant Colonel Elizabeth Deville Laurens with ID number: 450202 0002 086, hereby declare under oath as 5 follows:
"I have been appointed at the staff officers class 1 training at the Southern Army College since 1995 and I still hold this post."
"On 30th January 2001 I was the secretary for the assessment board which was confined for the then Junior Commander
10 and Staff duties course. Number 98007693PE Lieutenant Colonel G.M. Phiri a member of the inventory call was one of the candidates who appeared before the board. Each candidate had the opportunity to speak to the board and all of them had the opportunity to aive their comments in writing on the appendences to the main document. which
15 contain the general meeting minutes of the board.. The recommendations of the board, the signatures of the members of the board and the written comments of each candidate were contained in the separate appendices allocated to each candidate who appeared before the board. In order to keep to the general minutes of the board as short
-,o
as possible candidates were afforded the opportunity to Wr::e their
commends on the appendices allocated to each of them. Because of this opportunity I the secretary did not keep (and was never recommended to keep) minutes of what each candidate said to the board. The minutes (the main document) the minutes are forwarded to all addressee and
25 within them only the relevant appendices to the "need to know"
addressee."
I repeat that sentence, as it is relevant here: "The minutes the main document) the minutes are forwarded to all the addressee and within them only the relevant appendices to the "need to know" addressee".
30. "It should also be remembered that the candida:es are
not authorised to sign the minutes for correctness. But they are entitled
to make written commends on read and sign on the appendices fbr each
. .
3 5 of them. These arrangement insure more privacy for :he candidates."
"I declare that I did not minute Lieuten-an: Phiri comments to the board and that he was given the opportunity to written
comments on the appendices allocated to him during the proceedings to this assessment board."
This is all I declare, signed E.D.V. Laurens."
Now the minutes as it is states there are forwarded to all the addressee and
5 apparently since it wasn't the address, it was not been given to him. But what
the oversight for them here is that this High Court order.
JUDGE: But my question was subsequent to the High Court
order being granted.
DEFENCE: Yes, Judge.
10 JUDGE: You claimed that the document had not been provided
to you?
DEFENCE: Yes, Judge.
JUDGE: Now since the High Court order was made, what
reasons were forwarded to the defence for non-compliance with that
15 ...(intervenes)?
DEFENCE: Yes, this is the decision because this letter was brought
by General Wnono to the meeting to say this is the response we have and in so
far as this issue now the court is seized with those documents since it is not an
addressee they go to those addressees in terms of this avid davit by Laurens
20 then it, we should be satisfied with this, so in other words it is not provided because obviously he was not, Colonel Phiri was not one of the addressees and it couldn't go to him but what the representatives of the DOD there was supposed to have done, was to point out to Laurens row that we are now dealing with a different situation here, were there has been a court order, we want to comply with a High Court order and please, now even if he wasn't an addressee at the time, lets have this document.
JUDGE: Thank you.
DEFENCE: Yes.
JUDGE: Thank you, Colonel Sirnolane. Ma or you have heard
30 what the Colonel has said before, I have specific questions. . Are there any general remarks that you wish to make with respect of the matter, of the court order itself and the return dates or not and the seven day period or not or paragraph 2 in the order stating the recommencement of the hearing and proving special grounds why documents would not be provided?
PROSECUTOR: Yes, Judge. Obviously the state is in a dispute whether
the seven day period with no return date automatically puts the burden on the
state to now ... (unclear) that is has complied. The seven day period expired,
the state handed over on the 8th of April 2004 and if we do not take weekends in
5 account a, the following document by hand General N.G. Du Preez which I will
read. That is:
"Legsato Thaba Tshwane / R /10650 for attention of Brigadier and General S.P Wnono. Entitled Lieutenant G.M. Phiri vs. Minister of Defence."
10 1. "...(Unclear) 1/R/10650 dated 5 April 2004 ...(unclear) to attach here to
find copies of:
• SA Army IG-report. C Army/IG Army/R/506/2/6 dated 25 June 2001 in closure 1.
• Certificate of investigation 05/2001 SA Army College
15 dated 6 March 2001 in closure 2.
2. "No B-mat intervention report could be found, the only corresponding documentation are the period January, February 2001 with regard to any B-mat involvement is the minutes of the GCSD assessment board meeting dated 30 January 2001 of which a copy, which minutes a copy is
-20 attach in closure 3."
3. "For your perusal and possible further instructions.
It was then given to General VVnono; he signed receipt thereof as well as it was
only written here Colonel on 13th April 2004. The state therefore as far as
reasonably unfairly expected complied within the seven-day period. Further that
25 a very common principal of he who ...(unclear) must prove. Now we have not
averted, we have complied. The averment from my learner colleague is that we have not complied. They are then therefore to approach the High Court. Because accordino to my learner colleague we are in contempt for many months now, although this office of the prosecutor only received an application towards
30 of paragraph 2 on the 9th of July 2004, which had answered, one is not able to
comply with because there is; no evidence that such a document exists.
I certainly cannot answer on behalf of the first
respondent. So the state's argument is that not only have complied, the court order only goes so far as to say we have to comply within a certain period which 35 we have done and that if the contention is there is content and non-compliance
that must come from my learner colleague who had held this court proceedings hostage as of the 6th of July with threats that it is going to go to the High Court to alleged contempt or to say that we have not complied. And now the argument is that well, we were having round table conferences to mediate this, that does
5 not mean that the initial instruction, it can, an application to the High Court can be withdraw at any stage should the round table meetincs be unsuccessful and those are just what they are, round table meetings. No person of the function line of the prosecution section was involved during any of these meetings. The state will maintain that it is not bound by advice and opinions handed down by
10 the state attorney. Certainly this honourable court as an independent traditional
authority is not bound by that.
JUDGE: Right, let just go back one or two steps. Your letter of
the 8th of April.
PROSECUTOR: Yes.
15 JUDGE: Referred to, makes mention of certain documents
attached.
PROSECUTOR: Okay.
JUDGE: Just keep it with you.
PROSECUTOR: Yes, Judge.
20 JUDGE: The IG-report that is apparently contained as (unclear)
thereto.
PROSECUTOR: Yes, Judge.
JUDGE: The defence claims they never received it, in stead
haven't been, the decision brief was supplied to them, what is your comment on
25 that?
PROSECUTOR: Judge they indeed received it b.,' hand of iMasiza
attorneys they indicated ...(intervenes).
JUDGE: What did they receive?
PROSECUTOR: This complete document. The IG--eport, Chief army,
30 the one I have indicated.
JUDGE: And not the decision brief?
PROSECUTOR: Which we have furnished later, we dIc ...(intervenes)
JUDGE: Right.
PROSECUTOR: Okay, Judge ...(intervenes).
JUDGE: I don't want to become involved; I just want to clarify
what allegations are on the table here. The defence claims it was not, he claims
it was that sufficient for my purpose at this point in time. Secondly you do agree
or rather the documents state it that the B-mat intervention report itself does not
5 exists.
PROSECUTOR: Yes.
JUDGE: But being that assessment board minutes does exists
and that was indeed supplied?
PROSECUTOR: 10 JUDGE:
PROSECUTOR:
Yes, yes, sir.
Okay. Anything last?
I just would add that it would appear that my learner
colleague on behalf his client was not happy with the content of the documents handed over. But the state has got numerous avid davits to say that that is what there is. That which we have not handed over simply does not exists.
15 JUDGE: All right. We will we are not going to go into the
existence" or not existence ...(intervenes).
PROSECUTOR: JUDGE:
Colonel Simolane? Thank you, Judge.
For purposes of my questions in this point in time.
20 DEFENCE: Judge, we of course my instructions are that other
document in that letter which says ...(unclear) that letter from General Du Preez are attached, something there that was in fact not furnished according to my instructions.
JUDGE: There were three documents. The 10-report.
DEFENCE: Yes.
JUDGE: Which you said you did not, they did not want to supply
the IG-report they wanted to supply a decision brief?
DEFENCE: Yes, the IG-report is the one they say they can't find it
now and they ... (intervenes).
30 JUDGE:
DEFENCE: JUDGE:
Right, but you already explained that to the court. Yes.
And then in respect of the, was it conveyed to you that
the B-mat intervention report does not exists?
DEFENCE: Ja, Colonel Phiri here, says the minutes, which they are
referring to. It is only the minutes, which they could give but they can't give.
Yes, the generic were not given.
JUDGE: Were not given?
5 DEFENCE: Yes, Judge. They had only give signatures.
JUDGE: Right but what was required per the court order was not the minutes of the board, B-mat assessment board but the B-mat intervention report. Now the prosecutor claims that they could not find such a document, was it conveyed to the defence that that document does not exist, that this is the
10 document descript in the court order?
DEFENCE: Yes, my instructions are that Judge, they did say that
they can't find the report but they can provide minutes in ...(unclear) of that report.
JUDGE: But even those minutes were not provided in full?
15 DEFENCE: Even those minutes have not been provided. (Someone whispering: but they did). Yes, because the, what is there it is said to be truncated to something with signatures but there is not contents, there are no minutes of the deliberations. Just something showing signatures, something truncated.
?0 JUDGE: Now would the defence be satisfied with the full minutes
of the assessment board in lieu of the B-mat intervention report?
DEFENCE: Yes, my instructions are that full minutes would suffice
because they would then record what transpired.
JUDGE: Right ...(intervenes).
DEFENCE: Yes, Judge just in passing here with your permission it is
that he who adverse applies equally to the state, if the state adverse, if the state adverse that we are complied then precisely what the state attorney is saying inform the High Court that we have complied so that the mend, we can bring. closure to the matter. If the state adverse it has complied, let it say so to the
30 High Court, say my Lord we have. complied, and when it say so, Judge how this matter will come to an.end. When it.says so they will put to the High Court the documents they supplied. If they have made and avid davit and say we have complied see Annexure so and so, this is so, item so of the order, Annexure so and so is so of the order: - Obviously- those papers would be served on Colonel Phiri and everybody, the court, the member will see we have supplied this. In
other words we are saying if the state says it has complied, let the state put the averment to the High Court and the way of putting that averment to the High Court would be to throw an avid davit to say the court ordered on such a day that we comply, we furnish the accused with this documents, mention the
5 documents, the documents are Annexure, the documents which is refer to in the
order.
The document refer to in the order is Annexure and the documents, and this is our of compliance, here are the documents Judges or Judge, this is our compliance. And the other side which is Colonel Phiri would
10 have a copy of that submission and he will be able to say either way and the
matter will come to an end and with respect Judge, this sessions of compliance and non-compliance will come to an end. And a ruling ...(intervenes).
JUDGE: There is nothing, the position is quite clear at this point
in time.
'15 DEFENCE: Yes.
JUDGE: I understand what was apparently furnished or
apparently not furnished. I understand the differentiations.
DEFENCE: Yes.
JUDGE: Madam Prosecutor, the letter of General Du Preez.
) PROSECUTOR: Yes, Judge.
JUDGE: You wouldn't happen to have a copy of it with you with
all the Annexure documents currently?
n'OSECUTOR: I only have a copy of the letter not of the enclosures
which he refers to, I only have a copy of the letter from Masiza attorneys where refers to the enclosures as well to say they received for example the minutes of ...(unclear) the assessment board meeting. I don't have all the closures in like a path unfortunately. I just have a copy of the letter.
JUDGE: No, ...(unclear) but it is not a problem. Right, the court
shall close at this point in time to consider its position.
'CASSETTE 2 STARTS] .
The time now is 11 o'clock, thank you Mr Court Orderly. Thank you Colonel hiri, you may withdraw. The tape is to be stopped.
(Court is closing to consider its position)
(Court re-opens)
FINDING
JUDGE: The matter of the State vs. Phiri the time now is 11:15.
5 The status of this court at this point in time is determent by the order made by
Judge Claasen. And his reference to the recommencement of the hearing ...(unclear) refer to in paragraph 2 is now my opinion is now indeed to this court. That is the only logical conclusion that the court can come to. And also for other reasons then that was forwarded by this court of before this court up to now such
10 as the fact that the previous consideration made by this court per ...(unclear) Colonel Piet Venter referred to the relevance of the document at trail where as what was dwelt with by the Supreme Court, by the High Court rather was whether the applicant was entitled to the document in preparation for his trail. Linked or related topics but different non the less. The status of the court
15 however is not determined by paragraph 2. That is determined by paragraph 1, which orders that the ...(unclear) 2, 3, 4 and 6 of the notes of the motion be made orders of the court which Colonel Simolane quite reckly argued my mind. That in first instance this matter, that is this military court is stayed, the hearing in this court is stayed pending the order prayed for under paragraph 3 and 4 or
20 prayer 3 and 4.
And they are quite clearly, 3 and 4, prayer 3 and 4 has the furnishing of the documents set out as a pre-condition before the staying of these proceedings come to an end. That the court distinguish, -the urt diStinguish between recommencement of this hearing for the purpose of hearing
-25 reasons why the state do not wanted to provide certain documents. As suppose to a situation whether it has been provided or not provided clearly indicates that the Judoe have in mind two different scenarios. This court therefore does not or may not commend even if it is to deal with the issue whether the documents can or cannot be forwarded. The ambit within which this court may reconvene is limited to an instance where the prosecution wants to indicate why it .does not want-to- provide the required documents. And it is .cle.a.r.from. the reasons supplied by the state and that the allegations by the defence that this is not an issue .before the court at this point in time. The question is v/hether those documents are available and can be provided or not. It would however appear that one of the documents in question is available the defence simply claims that
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| Jacob Zuma (Mr) and some unnamable character |
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