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| "Siziwe" a.k.a "Sighs", the self-professed Nelson Mandela Cousin who achieved generalcy and other ranking through adultery/prostitution with at least one Raymond Lentsoe in Year 2000. Goodman Manyanya Phiri, according to Mr Jacob Zuma, must for 11 years now therefore continue to suffer for blowing the whistle against this relative to a Mandela that Zuma calls "The Father of The Nation South Africa". Her official name is Winnie Ntombizodwa Zini-Bobelo |
PART SIX (6) 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.
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
COURT CASE OF : LIEUTENANT COLONEL : GOODMAN MANYANA PHIRI RESUMES ON 24 February 2004
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Colonel, are you Lieutenant Colonel Goodman Manyanya Phiri?
GOODMAN MANYANYA PHIRI: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY 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 Mabusela from the Defence Intelligence and Lieutenant Colonel John Mogoane Moseane, also from S A Defence 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 in our decisions in this matter, or that any of us have a personal interest in the proceedings?
GOODMAN MANYANYA PHIRI: Judge, at this stage, and to my best of knowledge, none whatsoever. Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I would also wish to point out that apart from the objections that I've already pointed out you can also object to either of the 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 the Colonel or the Lieutenant Colonel?
GOODMAN MANYANYA PHIRI: None against the assessors whatsoever, Judge, thank You
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Good. In which event then the court shall rise to administer the appropriate oath to the assessors.
(Assessors are sworn in)
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you, you maybe seated. Colonel, you maybe seated next to Colonel Simelane at this stage. Thank you very much.
GOODMAN MANYANYA PHIRI: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: It has been indicated in pre-trial to me that there will be 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 Simelane?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases.
APPLICATION FOR POSTPONEMENT
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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 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 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 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 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 of the record, and it maybe indicated accordingly, as the court ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Just show it to the prosecution. Have you seen that application?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: In fact it was also copied to the prosecution and through our register ...
PROSECUTION COUNSEL Ms PAKENDORF: Yes, Judge, I did not get a copy initially, but did eventually get a copy yesterday from the Director of Military Prosecutions. MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Do you have any objection to the document being handed up?
PROSECUTION COUNSEL Ms PAKENDORF: As proof of the document being handed to Director, Military Prosecutions no objection.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes ...
PROSECUTION COUNSEL Ms PAKENDORF: Sorry, Judge, not to the content thereof,I just wish to
make it clear.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Sorry. Just repeat that.
PROSECUTION COUNSEL Ms PAKENDORF: We dispute the contents of the letter ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: That is to say the arguments made herein
PROSECUTION COUNSEL Ms PAKENDORF: The arguments pertained in the letter, yes.
PROSECUTION COUNSEL Ms PAKENDORF: Submitted to Director, Military Prosecutions, correct, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. The document dated 17 February 2004 under file reference "C... (unclear) .../file/R/, Colonel ... (unclear) ... Simelane for enquiries is marked as Annexure "A" to the proceedings. Please proceed.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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 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 which claims certain documents were given to us, to the defence
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could I interrupt you?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Any objection to the documentation being handed up?
PROSECUTION COUNSEL Ms PAKENDORF: No objection.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY 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/, Enquiries\ Brigadier General G R Slabbed, Annexure
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Please continue.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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 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 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 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 indicated previously through Colonel Lüüs 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 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 ... 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 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 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 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 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 Lüüs 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 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 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 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 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 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 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 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.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Is the prosecution in a position to answer at this stage, or would you want a moment to reflect?
PROSECUTION COUNSEL Ms PAKENDORF: The prosecution is ready, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: You may proceed.
PROSECUTION COUNSEL Ms PAKENDORF: As the court pleases, Judge, thank you.
REPLY BY THE PROSECUTION
PROSECUTION COUNSEL Ms PAKENDORF: 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 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
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Let your learned colleague speak for himself.
PROSECUTION COUNSEL Ms PAKENDORF: Yes, that I was in a position to obtain these documents 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 Preliminary Investigation? 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 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, Departmental 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 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 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 Simelane 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 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 require to prepare" ...
PROSECUTION COUNSEL Ms PAKENDORF: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: In the opinion of the prosecution that would be the Notice of Enrolment, the prosecution and the preliminary investigation?
GOODMAN MANYANYA PHIRI: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY 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 Mabusela from the Defence Intelligence and Lieutenant Colonel John Mogoane Moseane, also from S A Defence 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 in our decisions in this matter, or that any of us have a personal interest in the proceedings?
GOODMAN MANYANYA PHIRI: Judge, at this stage, and to my best of knowledge, none whatsoever. Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I would also wish to point out that apart from the objections that I've already pointed out you can also object to either of the 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 the Colonel or the Lieutenant Colonel?
GOODMAN MANYANYA PHIRI: None against the assessors whatsoever, Judge, thank You
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Good. In which event then the court shall rise to administer the appropriate oath to the assessors.
(Assessors are sworn in)
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you, you maybe seated. Colonel, you maybe seated next to Colonel Simelane at this stage. Thank you very much.
GOODMAN MANYANYA PHIRI: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: It has been indicated in pre-trial to me that there will be 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 Simelane?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases.
APPLICATION FOR POSTPONEMENT
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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 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 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 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 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 of the record, and it maybe indicated accordingly, as the court ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Just show it to the prosecution. Have you seen that application?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: In fact it was also copied to the prosecution and through our register ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes ...
make it clear.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Sorry. Just repeat that.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: That is to say the arguments made herein
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. The document dated 17 February 2004 under file reference "C... (unclear) .../file/R/, Colonel ... (unclear) ... Simelane for enquiries is marked as Annexure "A" to the proceedings. Please proceed.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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 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 which claims certain documents were given to us, to the defence
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could I interrupt you?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Any objection to the documentation being handed up?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY 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/, Enquiries\ Brigadier General G R Slabbed, Annexure
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Please continue.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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 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 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 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 indicated previously through Colonel Lüüs 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 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 ... 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 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 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 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 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 Lüüs 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 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 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 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 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 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 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 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.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Is the prosecution in a position to answer at this stage, or would you want a moment to reflect?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: You may proceed.
REPLY BY THE PROSECUTION
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Let your learned colleague speak for himself.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: In the opinion of the prosecution that would be the Notice of Enrolment, the prosecution and the preliminary investigation?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: And that would, in the opinion of the :rosecution suffice for Rule 107 purposes?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Who is this?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could I draw your attention to the documents that have now been marked as Annexure "A" before the court?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: There is an Appendix "A" to that doc...:ment.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: "List of required documents for cour: purposes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY 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 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 Goodman Manyanya 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 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 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 Simelane does indeed bring the application by means of evidence of Lieutenant Colonel Goodman Manyanya Phiri. Then on 14 March 2003 Colonel Venter gives his judgements in the case, amongst the documents that you have 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 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 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 ..." he's obviously missed out the 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 page 168 referring to the handing over of the Preliminary Investigation? this happened some time ago, it seems to be evident from Exhibit "A" which includes the Preliminary Investigation 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 Military Disciplinary Supplementary Measures Act-MDSMA. In the words of Section 35(3)(b) of 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 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 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 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 Goodman Manyanya 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 apart from the charge of crimes injuria the other charges, in terms of the Military Disciplinary Code-MDC are routinely dealt with by a departmental 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 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 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 Preliminary Investigation 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 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 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 Preliminary Investigation which is not relevant at this stage. Judge, therefore it is prosecution's submission that this submission which Colonel Simelane has put before the court today has already been dealt with by this court adequately, and what Colonel Simelane 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, ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could I just ... there's an application by the defence for a postponement. You have a counter-application?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Is that what you are saying?
1) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: So you oppose the application?
PROSECUTION COUNSEL Ms PAKENDORF: 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 Military Disciplinary Code-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 departmental 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 departmental 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 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 Military Disciplinary Code-MDC Defence Act does not provide for hastening, or expediting of trial. procedures, or of a trial per s? and therefore we now bring this application. If the court were to find in any event that section
2) 48 342(a) of the Criminal Procedure does not apply there is also the common law route, which maybe 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.
3) 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.
4) 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":
(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.
5) (2) In considering the question whether any delay is unreasonable the court 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, "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 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 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 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 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 ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: On what date?
PROSECUTION COUNSEL Ms PAKENDORF: 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 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 ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The date again?
PROSECUTION COUNSEL Ms PAKENDORF: 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 applicaton for the recusal of the judge. Now here begins the problem, Judge, then on 0 June 2003 the case 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 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 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 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 ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: On what date?
PROSECUTION COUNSEL Ms PAKENDORF: 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 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 ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The date again?
PROSECUTION COUNSEL Ms PAKENDORF: 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 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 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 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 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,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 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 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.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Excuse me, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Just a moment. Right, Colonel Simelane, 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?
(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 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 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 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 ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: On what date?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The date again?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: On what date?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The date again?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Excuse me, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Just a moment. Right, Colonel Simelane, 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?
6) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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 of course the application which she has ... (unclear) ...
REPLY BY THE DEFENCE BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: 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 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 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 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 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 may bebe some 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 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 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 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 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 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 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 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., 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 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 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 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 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 Lüüs who had said previously because it was clear. My learned friend was incorrect to say there may have been an order, there was no order. The court, in Colonel Lüüs 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 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 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 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. 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 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 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 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 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) 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 havevave 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 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 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 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 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 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 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 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 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, 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.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Do you have any questions that you wish to The court shall close to consider the applications ... (unclear) .
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The court will not make its finding known within a short space of time, I propose that this matter then stand down unti! the morning.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could we commence as early as 08:33?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: 08:30 then Colonel Phiri, please be resent at the court tomorrow morning at 08:30
GOODMAN MANYANYA PHIRI: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: When the court will make known its finding in this application. Thank you, Mr Court Orderly, the Colonel may ithdraw.
(Court adjourns)
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| Jacob Zuma (Mr) and some unnamable character |
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