PART-3: "human?" IT'S CALLED "GOODMAN RIGHTS DAY", MR PRESIDENT!

"Siziwe" a.k.a "Sighs", the self-professed
Nelson Mandela Cousin
who achieved generalcy and other ranking
through adultery/prostitution
with at least one Raymond Lentsoe in Year 2000.
Goodman Manyanya Phiri, according to Mr Jacob Zuma,
must for 11 years now therefore continue to suffer
for blowing the whistle against this relative to a Mandela
that Zuma calls "The Father of The Nation South Africa".
Her official name is
Winnie Ntombizodwa Zini-Bobelo

PART THREE (3)  OF TEN (10)

Dear Mr President Jacob Zuma, Your Excellency

Human rights cannot, as Lindiwe Sisulu's actions are suggesting with her continued unlawful acts against Phiri, mere paper human rights, but they are also rights for Goodman Manyanya Phiri.  If the administration of Your Excellency Zuma (like the pro-Eastern-Cape tribalistic regimes of  Mandela and Mbeki) through Sisulu's roughshod actions, fail to treat me within my rights enshrined in the constitution regarding the kangaroo court she and her fellow Eastern-Cape tribalists (assisted by a few toadying white racists) initiated against me back in 2001 for doing what is right for my land (BLOWING THE WHISTLE ON CORRUPTION)....

...What hope do I have Mr President Zuma that your administration, of all the administrations post-apartheid, will finally repatriate and COMPENSATE my first wife and our children, still illegally banished (since 1994) by the self-same tribe of Lindiwe Sisulu with the particular hand of "Freedom Fighters" Monezi Gchilitshe and Benson Mandindi acting under the orders (implicit) of another Eastern-Caper, Clarennce Mlamli Makwetu?

ON THIS DAY, SOUTH AFRICA'S HUMAN RIGHTS DAY, WHEN THE WHOLE WORLD JOINS SOUTH AFRICANS IN CELEBRATING ONE OF THE MOST GLORIOUS CONSTITUTIONS ON EARTH, I HAVE CHOSEN MR PRESIDENT, TO HIGHLIGHT SOME OF THE PROCEEDINGS IN LINDIWE SISULU'S KANGAROO COURTS, A 10-YEAR-OLD PROCESS WHICH, FOR BANKRUPTCY OF IDEAS AS TO HOW TO FURTHER VICIMIZE PHIRI FOR BLOWING THE WHISTLE ON HER FELLOW THEMBU-TRIBESWOMAN-GENERAL WINNIE NTOMBIZODWA BOBELO-ZINI, SHE HAS RESUMED AS OF LAST THURSDAY THE 17TH MARCH 2011.

THE TWO BIGGEST FLOPS AND UNDOABILITIES ABOUT THIS "TRIAL" ARE.

1.  SISULU'S SO-CALLED EVIDENCE AGAINST PHIRI WAS COLLECTED IN A MANNER THAT FLOUTS FAIR LEGAL PROCEDURES IN THAT SERIOUS ALLEGATIONS WERE PUT IN AN A FELLOW-EASTERN-CAPE-BORN MAJOR GENERAL ENOCK MASHOALA'S BOARD OF INQUIRY YET PHIRI WAS NOT CALLED TO CROSS EXAMINE OR OPPOSE THE "WITNESSES" AND THEIR EXPECTORATIONS FOR PRO-SISULU EVIDENCE.  NOR HAS THAT MASHOALA REPORT TO DATE BEEN MADE TO PHIRI DESPITE SEVERAL HIGH-COURT APPEALS BY PHIRI....[(to the reader of this post, Blogger's elucidation on the Mashoala character, please check the yellow highlight to be found here)]....

2.  SISULU IS UNLAWFULLY REFUSING TO PAY COURT FEES FOR PHIRI JUST AS THEY WERE PAID FOR YOUR EXCELLENCY ZUMA IN YOUR "CORRUPTION" TRIAL.  WHERE IS THE EQUALITY ENSHRINED BY "GOODMAN RIGHTS DAY" CONSTITUTION IF ZUMA BY VIRTUE OF MEMBERSHIP TO THE RULING PARTY CAN HAVE STATE PAYMENT OF HIS EXPENSES BUT PHIRI JUST BECAUSE HE IS A SOLDIER AND WITH NO POLITICAL PARTY TO BACK HIM?

3. LINDIWE SISULU KNOWS VERY WELL THAT SOUTH AFRICA'S CONSTITUTION AND REQUISITE LAWS MAKE IT UNLAWFUL FOR HER TO PROSECUTE PHIRI SEEING THAT I WAS PROSECUTED (AND THERE IS AMPLE PROOF OF MY BLOG AND COURT PAPERS ALL AROUND) BECAUSE OF DARING TO EXPOSE NELSON MANDELA'S COUSIN, BRIGADIER GENERAL BOBELO-ZINI WHO, AS A MAJOR WHEN I BLEW THE WHISTLE, HAD NO RIGHT (EXCEPT THROUGH THE BEDROOOM WITH AT LEAST ONE COLONEL RAYMOND LENTSOE) AND STILL HAS NO LEGAL RIGHT (EXCEPT THROUGH SISULU'S THEMBU TRIBALISM AND EASTERN-CAPE REGIONALISM) TO REMAIN A BRIGADIER GENERAL OF THE SOUTH AFRICAN NATIONAL CONGRESS AND SHOULD BE PROSECUTED  INSTEAD TOGETHER WITH HER BOYFRIEND LENTSOE... NOT PHIRI

1)       ((Court re-opens))

2)      JUDGE PIET RETIEF VENTER:                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.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases.
DEFENCE'S ADDRESS ON APPLICATION
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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 that regard.. 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) SALR 291(b) it's asking for an order that the documents be provided for that purpose.
JUDGE PIET RETIEF VENTER:                Right.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Thank you.
JUDGE PIET RETIEF VENTER:                Thank you.          Address by prosecution counsel?
PROSECUTION COUNSEL Ms KAREN BOSHOFF:          Thank you, Judge.

PROSECUTION OPPOSES APPLICATION 

PROSECUTION COUNSEL Ms KAREN BOSHOFF:          I believe, as also indicated by the court,the Military Disciplinary Supplementary Measures Act-MDSMA itself does not provide for this application.   Although the Military Disciplinary Supplementary Measures Act-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 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.
JUDGE PIET RETIEF VENTER:                Are you using this as an analogy?
PROSECUTION COUNSEL Ms KAREN BOSHOFF:          Just to assist the court ...
JUDGE PIET RETIEF VENTER:                Request for further particulars, yes, how it deals with such an application?
PROSECUTION COUNSEL Ms KAREN BOSHOFF:          That's correct, Colonel.
JUDGE PIET RETIEF VENTER:                Okay.
PROSECUTION COUNSEL Ms KAREN BOSHOFF:          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  court must distinguish or determine it within the relation  to the preliminary investigation and determine, and the 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 necessary for The Accused to be able to plead on the charges that put against The Accused. Furthermore, .
JUDGE PIET RETIEF VENTER:                Sorry, you were referring to Section what of the Crimin...
PROSECUTION COUNSEL Ms KAREN BOSHOFF:          87, Colonel.
JUDGE PIET RETIEF VENTER:                87?
PROSECUTION COUNSEL Ms KAREN BOSHOFF:          Of the Criminal Procedure Act.
JUDGE PIET RETIEF VENTER:                Ja?
PROSECUTION COUNSEL Ms KAREN BOSHOFF:          Furthermore, the prosecution is also of 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 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 present who's going to be a witness.
JUDGE PIET RETIEF VENTER:                That is quite so.
PROSECUTION COUNSEL Ms KAREN BOSHOFF:          Yes.
JUDGE PIET RETIEF VENTER:                Mm.
PROSECUTION COUNSEL Ms KAREN BOSHOFF:          .So in that regard the document will then 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 their case. As it pleases the court.
JUDGE PIET RETIEF VENTER:                Defence Counsel, reply if you wish.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Sir.

3)      REPLY BY DEFENCE

4)      BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: The reply will be short that we are 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)

5)      JUDGE PIET RETIEF VENTER:                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 Colonel Goodman Manyanya 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 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.
PROSECUTION COUNSEL Ms KAREN BOSHOFF: As it pleases the court.
(Case adjourned until 14 March 2003)

20030314

6)      (Transcription commences on tape 8)

((Court re-opens))

COURT CASE OF LIEUTENANT COLONEL GOODMAN MANYANYA PHIRI COMMENCES ON 14 March 2003

JUDGE PIET RETIEF VENTER:                The case of Lieutenant Colonel Goodman Manyanya Phiri proceeds on 14 March .2003.            The time now is 09:25.   The 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 Military Disciplinary Supplementary Measures Act-MDSMA, Act 16 of 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 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 Military Disciplinary Supplementary Measures Act-MDSMA it was not necessary for them to 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 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.

7)      JUDGE PIET RETIEF VENTER:                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. 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 applied on behalf of The Accused, 31 January 2003 Defence Counsel applied on behalf of The Accused, Lieutenant Colonel Goodman Manyanya 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 forms part of Exhibit "A". Defence Counsel called Lieutenant Colonel Goodman Manyanya 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 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 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 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: 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 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 therefore Section 7 must be applied in repect of the defence's application.                As it was stated howe-:er, on page 38 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 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 departmental court where a preliminary investigation has been held (as happened in Lieutenant Colonel Goodman Manyanya Phiri's case), the Preliminary Investigation takes the place of a police docket and in terms of Rule 17 (1) (c) of Military Disciplinary Supplementary Measures Act-MDSMA The Accused must be a given a copy of the Preliminary Investigation not later than two days before the commencement of the trial." This happened some time ago, as seems to be evident from Exhibit "A" which includes the Preliminary Investigation? 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 to in Rule 107 Military Disciplinary Supplementary Measures Act-MDSMA.     In the words of Section 35(3) (b) the 1996 Constitution, Lieutenant Colonel Goodman Manyanya 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 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 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 Mohammed in the Shabalala case that, "factors to be taken ir17---0 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 Goodman Manyanya Phiri's 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 dealt with by a departmental 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, 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 prosecution and the defences , and on the face c= i and bearing in mind that the defenc 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 exclamation mark behind that.  Can I just refer to these exhibits?      On the contrary merely comparing the Preliminary Investigation 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 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  isthat,the defence's application is DISMISSED. and. that The Accused will be required to plead to the charges at the appropriate stage.  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 departmental judge in Lieutenant Colonel Goodman Manyanya 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 ownaccord, 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 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 departmental judge. It is my responsibility to apply my mind to each aspect of the abplfcaton and that 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 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 presiding judge is allowed to peruse the Preliminary Investigation? 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 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 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." 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 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 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. 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 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 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 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?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge, the ... (unclear). .     just for the copies of the rulings that you've been dealing with 5          ... (unclear) ...
JUDGE PIET RETIEF VENTER:                For what they are worth I can have photo- stats made thereof.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, we prefer ... (unclear) ...would have liked them to be typed.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, for the purpose of instructions if we can have a copy of the handwritten one.
JUDGE PIET RETIEF VENTER:                Okay. Will it be possible to indicate to this court within the next 1-1 hour what your position is?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Well, I can't . . (unclear)                ... Judge, but let's see ...
JUDGE PIET RETIEF VENTER:                No. But I'm just giving that as a-target time, let's say.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, we' 11 try and do our best to go through this document as well:
JUDGE PIET RETIEF VENTER:                Okay. But ... yes. Okay, I'll do so.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Thank vou very much.
JUDGE PIET RETIEF VENTER:                Anything that the prosecutor wants to say at this stage?
PROSECUTOR:           None, thank you, Judge.

8)      (Recording machine was switched off)

9)      JUDGE PIET RETIEF VENTER:                Somebody put off the air-conditioning please.   The court re-opens at 10:35 on today, 14 March 2003.            Colonel Lorraine Mametsi Mabusela, the senior assessor has arrived 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?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge,   they are not there's        no objection to the sitting ... (unclear) ...
JUDGE PIET RETIEF VENTER:                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, which is to be decided by the court on its own and also read with Section 20(5) Military Disciplinary Supplementary Measures Act-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 proceedings in the court. Any objection to that happening previously?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: .. (unclear)          history, Judge.
JUDGE PIET RETIEF VENTER:                Yes, but do you have any objection at this stage that you want to put on record of that happening 15   just now?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: (No reply).
JUDGE PIET RETIEF VENTER:                T can't   .S'c that there can be     any objection.
DEFENCE.:   (No reply).
JUDGE PIET RETIEF VENTER:                Obje tion?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Er
JUDGE PIET RETIEF VENTER:                Maybe I shouli.n't press y— on that.
DEFENCF..:  No,. it'c,
JUDGE PIET RETIEF VENTER:                I don't expect an answer at this stage.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
JUDGE PIET RETIEF VENTER:                Okay.
JUDGE PIET RETIEF VENTER:                But it was instructions on the which might bear on this coming application that if (unclear)     since they were not facing when the jc3'read in reasons.
JUDGE PIET RETIEF VENTER:                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?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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 PIET RETIEF VENTER:                The court cannot repeat that here in open court, but okay, T will do so if there is no problem .that it's actually at the request of the defence.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: ... (unclear) ...
JUDGE PIET RETIEF VENTER:                And I'll do it again.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Okay, thanks.
JUDGE PIET RETIEF VENTER:                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 applied on behalf of The Accused, Lieutenant Colonel Goodman Manyanya 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 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 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 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 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 Preliminary Investigation? 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  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 the case maybe." 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 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 Transaal 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 departmental court where a preliminary investigation has been  held (as haopened in Lieutenant Colonel Goodman Manyanya Phiri's case), the Preliminary Investigation 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  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 Military Disciplinary Supplementary Measures Act-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 documents.

10)   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 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 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, 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 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 contrary-Imerely. comparing the Preliminary Investigation 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 Preliminary Investigation but in several 7=-bellate Division cases it was held that, "it affords no ground for objection to a judge that he has read the preparatory examination record, see Gardner & Lansdowne S A Criminal Law and Procedure Volume 2, page 398.

11)   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 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 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 trial i n preparation of a defence. A pniht to be 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 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  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 that is what I read out previously this morning. What doethe defence intend to oc?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:Yes.         We have no objection   to the presence of assessors.   We think it          be =o the benefit -)s      of this case
JUDGE PIET RETIEF VENTER:                J=.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: as they will sit up t the Ent', of this trial.
JUDGE PIET RETIEF VENTER:                Okay—
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:.                That
JUDGE PIET RETIEF VENTER:                bo you want to call' cient to the witness box?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:'                AS the court pleases.    Colonel, could you' please take the stand. Phir , yes, for the record state your force number.

Jacob Zuma (Mr) and some unnamable character