PART-7: "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 SEVEN (7)  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 HER  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))
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         In the matter of State versus Phiri, the time now is 08:06 on 25
FEBRUARY 2004, this court postponed this matter yesterday afternoon, or just before lunch to today at 08:00. You remember that, Colonel?
GOODMAN MANYANYA PHIRI:         Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Right, I have now discussed the matter with Colonel Simelane telephonically, and I've also just informed the prosecutor that the court will require a couple of hours more to complete my research in this matter and consequently this matter will stand down until this afternoon at 13:30.

GOODMAN MANYANYA PHIRI:         13:30, Judge, confirmation?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         13:30 it is.
GOODMAN MANYANYA PHIRI:         Thank you, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you for your attendance, you're excused, you may withdraw, please be present at 13:30 then and then we will continue with this matter.
GOODMAN MANYANYA PHIRI:         Thank you, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you very much.

(Court adjourns)

((Court re-opens))
FINDING
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         In the matter of State versus Phiri, the time now is 13:40 on 25 February 2004. Present in the court is myself, Colonel Michael Bertus Venter as  well as the two assessors who were sworn in yesterday, as well as The Accused  plus his defence counsel and the prosecutor. The proceedincs yesterday kicked off with an application after the swearing in procedure of the assessors by an application ... or with an application by the defence for postponement in this matter, the reasons of which are on record and I will not repeat again. The court, in deciding the postponement had to weigh two primary considerations, that is to say the right of The Accused to a fair trial on the one hand, and on the other hand the right a person has for the matter to be  dealt with without an unreasonable delay. This ... (unclear) .,. of course in the inverse means that the state should also be able to continue with the matter at its earliest. Dealing with the right to a fair trial, the court South African Criminal Court decided in a lot of decisions already in 1994 that the right to a fair trial includes the right to be in a position to prepare properly, and that that implies that an accused should have access to information which he requires to so prepare his defence... (unclear) ... must be sounded in the form of the decisions quoted in the book, Commentary to the Criminal Procedure Act by du Toit and Others where he in ... or rather on page 23-1 in service 19 thereof refers to the cases of ex parte Bradley, 1926 (OPD) 218 and the case of Shoo and Another v Sadovitz 1970 (1) SALR 193, a Cape Division case, which confirmed the relevant requirement in our law, and that it also relates to the issue of a subpoena with respect of a witness called upon to produce a document at a subsequent trial. In this respect, it appears from the record of the pre-trial proceedings that Colonel P R Venter ruled already on 14 March 2003 that the documents required by the defence are in fact not to be supplied by order of the court as The Accused is already in possession or rather in a position to answer to the charges. Irrespective of the other right, that is the right also of the state to expect to start with proceedings at its earliest, the state raised its concern with the long time this matter has been taking to come to fruit, and that she inter cilia has one witness in Nigeria which causes logistical problems in bringing him to Pretoria for the trial. Although it was not explicitly said I also understand by implication that this person has left the employment of the SANDF, I stand to be corrected, and if that is the case one also then deals with the added problem of obtaining the presence of what is now a civilian member to attend this trial, over and above that as was pointed out by the state, as time goes by memories fade, and surely the state must also be in a position to place before the court the best evidence that they can muster. The court consequently looked at the sequence of events in determining whether the application for a postponement should be granted or not, and found the following. That the incident complained of took place over the period 6-8 or 9 March 2001 and that is also the date of the DD1 in this matter, that on that same day, 9 March 2001 the first Section 29 appearance of The Accused took place, that during April of that same year, approximately a month after the incident ...

(End of tape 2)

(Transcription continues on tape 3)

2)      MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         ...            and the DD1 and the first Section 29 appearance The Accused formally instructed the defence counsel in this matter, Colonel Simelane.        The following dates all reflect Section 29 appearances of The Accused, 28 June 2001, 18 September 2001; 13 November 2001, 26 November. 35        2001 and 8 January 2002, also 26 February 2002. What exactly transpired at any of these Section 29 appearances is not quite clear, I could not find any record of such appearances having been recorded on tape and the details contained on the Section 29 appearance certificates themselves are sketchy, to say the least. What is however clear is that by then, that is to say 26 February 2002 a preliminary investigation in the matter had been concluded and had been handed to The Accused. On 28 February 2002 the defence lodged an application for the release of information in terms of the Access to Information Act. On 5 March 2002 the information office at the Department of Defence acknowledged receipt of the application fore-mentioned. On 26 April 2002 another Section 29 appearance of The Accused took place, which is also the first instance that I could find of the appearance being recorded on cassettes, the appearance took place in front of Colonel Lüüs. The defence indicated at the time that they still required documentation which would only be available some 90 days after 5 March 2002. That state also confirmed that it advised the defence that the Access to Information Act would be an applicable avenue for them to use, and did not oppose a postponement in the matter and the court clerk postponed the matter to 24 June 2002. Before the 30 days, or rather the 90 days referred to previously, lapsed a letter was emanating from the Department of Defence information office on 7 May 2002 informing the defence that the application, under the Access to Information Act, was unsuccessful and approximately a month later, on 18 June 2002 the defence lodged an internal appeal against such decision. On 24 June 2002 as was postponed, The Accused again appeared before Colonel Lüüs in terms of Section 29, no recording of that instance could be found. On 11 June 2002 ,.. I regress, there's a patent error in the dates. I repeat on 11 July, not 11 June ... on 11 July the information centre at the DOD informed the defence again that the appeal process had also been dealt with, and that the appeal was turned down. The letter also includes a reference to the rules under the Defence Act for relief. The Accused again appeared then on 10 September 2002 before Colonel Lüüs which event was recorded. The application for the recusal of the judge was denied at that  instance, an application for recusal of an assessor not chosen by The Accused. was denied by the court. The court also indicated that two other applications would then be heard by another judge as Colonel Lüüs would be leaving the service. The other two applications would be for the .recusal of one of the 35   assessors as well as an application for ... or rather for a decision upon the relevance of documentation requested by the defence, the matter was postponed until 28 November 2002 and the reason for the long postponement from September to November tentatively was on account of Colonel Simelane being on course. On 28 November 2002 The Accused appeared before Colonel P R Venter where an application for the recusal of an assessor was successful, and the case was postponed till 21 January 2003 to obtain the services of another assessor. On the said date, 21 January 2003 The Accused appeared before Colonel Venter, but for some reason or another the matter was postponed until 31 January 2003 where he again appeared before Colonel Venter, where there was indeed an application for documentation to be made available, The Accused also testified in that instance, the case was postponed until 14 March 2003 for Colonel Venter to make his rulinc. and on the said 14 March 2003 Colonel Venter found that The Accused was in possession of the minimum information required to be disclosed by the state which should enable  him to answer to the charges. Further that he had the option of issuing subpoenas ... (Latin) ... that is to say requiring a person to produce at court a specified document. Further that the charges in this instance were not complex, and lastly that The Accused was already, to a large degree of all the information that would typically be required in answering charges such as those that he was faced with. The defence answered to the court findings for an application, ... or with an application for the recusal of the judge, which cc.art denied and the matter was postponed until 9 June 2003. On 9 June, as well as 10 June The Accused was present, with his defence counsel, one of the assessors, however, were not and the matter was postponed till 14 June ... oh, sort', postponed to 24  25 July 2003, seemingly this appearance on 24 July 2003 did not realise and the next appearance of The Accused before a court that I have record of, took place on 27 January 2004 in front of Colonel Colby where the mater was postponed until 24 February, the reasons on ... ostensibly being the a , ailability of senior judges to deal with the matter, which brings us then to a postponement to this session. Before we came to this session, however, further dates that are of note are 17 February 2004 where a letter came from the defence counsel in this matter to the Director, Prosecutions requesting his assistance in making  available the documentation required, and on the very next day, 18 February  2004 a letter from the prosecution denying such assistance to tne.defence in this matter and than on 24 February, that is yesterday The Accused appeared before myself where an application by the defence was made for this matter to be postponed to enable The Accused to bring an application to the High Court for relief in this matter. I do not wish to deal with the merits of decisions previously made by this court. My research in the matter was limited to the record of proceedings previously recorded, considering the time scales that this matter took since 2001, the conduct of the defence insofar as they sought to obtain the documentation necessary, and it would appear that the defence knew since 11 June 2002 that the information ...or Access to Information Act could not be used, and at least since 14 March 2003 that the departmental court would not order the release of the documentation sought. I fail to see why, after either of these dates, the defence did not chose to approach the High Court for the relief they now seek and why the postponement is only now sought from the court. In considering the application I took into consideration the length of the delays since the trial started, the reasons for the delay, including the instances where  the assessors were not available, the complexity of the charges The Accused is faced with, the information The Accused already has available to him as can clearly be seen from the details in which The Accused testified before the court, the vigour with which the defence pursued options, specifically after the decisions referred to on 11 June 2002 and 14 March 2003, as well as the lack of precedents in law provided by the defence to convince the court of the need for a postponement under the circumstances. I'm of the opinion. and it is indeed my finding, Colonel Phiri, that The Accused has had sufficient time to prepare in this matter, that the defence is in possession of the minimum information required to answer to the charges to it, that you have sufficient information about the circumstances and the facts of this case that you can pursue your defence without having ... without the need for a further postponement in this matter to obtain such and consequently the application for a reman± in this matter, to approach the High Court, is DENIED.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases.
PROSECUTION COUNSEL Ms PAKENDORF:   As the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Madam Prosecutor, would there be any amendments to the charge sheet that you wish to bring to the notice of the cc...:rt, or charges that you wish to withdraw?
PROSECUTION COUNSEL Ms PAKENDORF:   No, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Before the court shall then continue to read       or have the prosecution read the charge sheet, the court shall rise and the court orderly to read to us the Code of Conduct.
(Court Orderly reads Code of Conduct)
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you. The court maybe seated. Madam Prosecutor, you may then commence to read the charge sheet.
PROSECUTION COUNSEL Ms PAKENDORF:   As the court pleases.
(Prosecutor reads charge sheet)
PROSECUTION COUNSEL Ms PAKENDORF:   Signed on behalf of the Senior Prosecution Counsel, Army Law Enforcement Satellite Office, Thaba Tshwane, on 28 January 2001. We seek leave to hand in the  documents. As the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Colonel Phiri, did you hear the charges?
GOODMAN MANYANYA PHIRI:         Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Do you understand the charges?
GOODMAN MANYANYA PHIRI:         Very well, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Colonel Simelane, are these the charges that you've consulted with your client on?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Is there any objection to the jurisdiction of the court, or to the charge sheet itself on the grounds that none of the sections quoted here  actually are offences?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: I couldn't follow the question, Jude.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Is the object... let me first ask you. is there any objection to the charge sheet, to the jurisdiction of the court?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: No.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Second question then is, is there an objection to the charge sheet that it is bad in law, specifically then that there is no such offences such as is described in the charge sheet?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: No.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Not? Thank you, Colonel Phiri, yc_: are then required to indicate to the court, to each  and every one of the charges separately how
you intend to plead.              

3)      PLEA PROCEDURE:
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         The first charge relates to 6 February 2001, using insubordinate or insulting language in contravention of Section 17 Military Disciplinary Code-MDC whereby 35           you would have told Colonel Johannes Hendrik Beyers Kleynhans that you did not agree with the way he did his work, and told him ... or said ... or replied to the said Colonel "I am fucking telling you that", how do you plead?
GOODMAN MANYANYA PHIRI:         Not guilty.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         The alternative thereto, on the exact same fact is a charge under Section 46 Military Disciplinary Code-MDC, how do you plead?
GOODMAN MANYANYA PHIRI:         Not guilty, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         The 2nd alternative to the first charge, also on the samefacts is a contravention of Section 45(a) Military Disciplinary Code-MDC where such conduct would be riotous or unseemly, how do you plead?
GOODMAN MANYANYA PHIRI: Not guilty, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:  The second charge relates to criminal .. the common offence ... the common law offence of crimen injuria that on that same day, 6 February you said to Colonel Johannes Hendrik Beyers Kleynhans that he's a racist and that you hate  racists with the intention to impair his dignity and which words also, according to the charge sheet did impair his dignity. How do you plead to this second charge?
GOODMAN MANYANYA PHIRI:         Not guilty, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         The alternative thereto, under Section 17 Military Disciplinary Code-MDC is that by saying such words to Colonel Johannes Hendrik Beyers Kleynhans your conduct would have been 20             threatening or insubordinate, or insulting.           How do you plead to this first  alternative?
GOODMAN MANYANYA PHIRI:         ... (unclear) ..., Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         The second alternative is under Section 46 Military Disciplinary Code-MDC that saying such words to Colonel Johannes Hendrik Beyers Kleynhans would be to the prejudice of military discipline. How do you plead to the second alternative?
GOODMAN MANYANYA PHIRI:         Not guilty, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         And there's also a third alternative that by saying to Colonel Johannes Hendrik Beyers Kleynhans that he was a racist your conduct would, under Section 45 Military Disciplinary Code-MDC amount to unseemly or riotous behaviour. How do you plead to the third 30       alternative?
GOODMAN MANYANYA PHIRI:         Not guilty, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         The third charge relates to also 6 March under ... and the charge is under Section 14(b) Military Disciplinary Code-MDC which absence without leave whereby you are charged with having ... without good and sufficient cause ... well that's 35      the way its framed, that you would have unlawfully and intentionally or negligently failed to appear at a place of duty being the Army College for a feedback session on the Inspector General enquiry. How do you plead to this allegation of absence?
GOODMAN MANYANYA PHIRI:         Judge, if you could ... (unclear) ... the court I'm not guilty to all the charges ... (unclear) ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Colonel?

BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:

MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you. Is that in accordance with your instructions, -Yeah, the plea is according to my instructions. Thank you very much. Colonel Phiri. you maybe seated next to your defending counsel.
GOODMAN MANYANYA PHIRI:         Thank you, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:the Could I just have one moment before I give you floor? Yes, Colonel Simelane, you have something to share with the court?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge, I was asking for an opportunity to consult with Colonel Phiri on the implications of the verdict, on the request for postponement.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Before we ... before I ... (unclear) ... consider that application for a remand. Madam Prosecutor, are you in a position to call any witnesses at this stage as we stand, or sit down?
PROSECUTION COUNSEL Ms PAKENDORF:   Judge, witnesses are a phone call a.vay, but they would obviously have to get here, I suspect that I could have the first witness here within 1/2 hour due to the type of case it has been ... they have been on standby.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:  Yes.              No, I fully understand an appreciate your position. Very well, the time then now is 14:16, we shall stand down until shall we say 14:45 which gives you + 1/2 hour to make the necessary arrangements? Would that suffice for you to deliberate with your client?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Not exactly sufficient, we're looking at about 45 minutes to an hour.
 MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:        Right, then 45 minutes it will be. At 15:00 the court will reconvene.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases.
PROSECUTION COUNSEL Ms PAKENDORF:   As the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you, Mr Court Orderly. Thank you, Colonel Phiri, you May withdraw. The time now is 14:17; the tape will be stopped.

(Court adjourns)
 ((Court re-opens))

MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         In the matter of State versus Phiri, the time now is 15:10 on 25FEBRUARY 2004. Colonel Simelane, you have taken instructions from your client. Is that correct?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you very much. Madam Prosecutor?
PROSECUTION COUNSEL Ms PAKENDORF:   Yes, Judge, in lieu of the indication that we got in chambers previously I just wish to place on record that the first state witness,  Colonel Eduard Frans Drost will not be called today, but tomorrow morning at 08:00 as agreed upon and that Lieutenant Colonel ... sorry, full Colonel now, Lentsoe, the second prosecution witness will also be called tomorrow to testify. As the court pleases.

4)      MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right. Before then ... before we then proceed to the state where the witnesses are formally called the procedure makes provision for formal admissions to be made by the defence should there be any. Can the defence indicate, would you be in a position to tell the court, are there any formal  admissions that you wish to place on record?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, there are no formal admissions at this stage ... (unclear) ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you. Would the defen... would the prosecution want to make any formal admissions in favour of the defence?
PROSECUTION COUNSEL Ms PAKENDORF:   No, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Right. Then I will require from the prosecution to deliver an opening address indicating to the court, you've now mentioned the names of the two first witnesses to be called, if you can just identify the third witness and give us a short synopsis of what we could expect from these witnesses. PROSECUTION COUNSEL Ms PAKENDORF:   As the court pleases, Judge.
OPENING ADDRESS BY THE PROSECUTION
PROSECUTION COUNSEL Ms PAKENDORF:   The prosecution will call a total of three witnesses to prove the charges contained as in the charge sheet. The first witness as alluded to in the first charge is a Colonel - Kleynhans, this is the witness who has previously been mentioned to this court who is presently in Nigeria, he will be available to this court between 8 and 26 March, and as said he will testify only to the first charge. Sorry, the first and the second charge. With regard to the third charge the evidence of Colonel Eduard Frans Drost who will be the first state witness will be led. He will also give background information on the fourth and fifth charges, and will give evidence ... direct evidence on the sixth and seventh charges. Colonel Lentsoe the final state witness, the third state witness who will be called second in line, if I May put it that way, in other words prosecution intends to call Colonel Eduard Frans Drost first, Colonel Lentsoe second and Colonel Johannes Hendrik Beyers Kleynhans third who will testify to the fourth and fifth charges, and will also support the first charge, the second and the sixth charge ... sorry, oh, did I mention the seventh charge, Colonel Eduard Frans Drost will testify on the seventh charge, and Colonel Lentsoe will support on the seventh charge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Lentsou? Len...?
PROSECUTION COUNSEL Ms PAKENDORF:   Tsoe.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you. Thanks.
PROSECUTION COUNSEL Ms PAKENDORF:   Thank you, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Would the defence want to make en opening address?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: (No reply).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Not required of the defence but if you would like to, you
may.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: No, we're not making an opening address, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you. Documents admissib'e by mere procuction from the side of the state?
PROSECUTION COUNSEL Ms PAKENDORF:   No, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Statements by The Accused?
PROSECUTION COUNSEL Ms PAKENDORF:   No, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Very well, we've reached the stage where the first witnesses would be called by the prosecution, this matter shall then stand down as per agreement, until tomorrow morning at 08:00 at whigh time I understand Colonel Eduard Frans Drost to be the first witness?
PROSECUTION COUNSEL Ms PAKENDORF:   That is so. Thank you, Judge, as the court pleases
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:                 . Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:'l bid you a good evening, the tape v. it be stopped: The
time now is 15:15, The Accused May withdraw. Thank you, Mr Court Orderly

5)      (Court adjourns)
((Court re-opens))

6)      MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         In the matter of the State versus Phiri, the time now is 08:06 on 26 February 2004. The first witness for the prosecution has been called to the stand, Colonel Eduard Frans Drost, is that correct?
STATE-WITNESS COLONEL EDDIE DROST:      That's correct.

CASE FOR THE PROSECUTION

7)      WITNESS NUMBER 1 : 76532951 PE : COLONEL : EDUARD FRANS DROST (Hereinafter referred to as "DROST") GIVES EVIDENCE UNDER OATH

8)      MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you, you maybe seated behind the microphone.
STATE-WITNESS COLONEL EDDIE DROST:      Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you. Madam Prosecutor?
PROSECUTION COUNSEL Ms PAKENDORF:   Thank you, Judge, as the court pleases.
EXAMINATION IN CHIEF:
PROSECUTION COUNSEL Ms PAKENDORF:   Thank you, Colonel, and your patience with this court is appreciated. Colonel, where do you work currently? You've already identified yourself to the court. Where do you currently work?
STATE-WITNESS COLONEL EDDIE DROST:      I'm currently a Project Officer at Army HQ, at the HR Section.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay. And where were you working during March 2001?
STATE-WITNESS COLONEL EDDIE DROST:      I then was the acting commandant of the South African Army College.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay. Do you know The Accused here present in court today?
STATE-WITNESS COLONEL EDDIE DROST:      Yes, I do.
PROSECUTION COUNSEL Ms PAKENDORF:   How do you know him, Colonel?
STATE-WITNESS COLONEL EDDIE DROST:      Colonel Phiri was one of the learners that were on course with us at the college, he was one of the Junior Command and Staff Duties students.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay. Now, on just as a matter of format, when a student is at the college and just generally speaking in broad terms, what is expected of him time-wise, what time should he be at the college and what time is he allowed to leave, where does he live, that sort of thing?
STATE-WITNESS COLONEL EDDIE DROST:      Okay, there's a Unit Part 1 Order thas stipulates working hours throughout, it says the following that you have to be at work at 07:45. The students actually also have their own time schedule, sometimes they arrive early on course and they have their own things that they do before hours, but official 07:45 up until 16:15 is the official working hours. It is expected of anybody to stay at work and to do his work on a daily basis, if you want leave for some or other activity there's a specific format and a specific procedure which you have to go through. If you are a normal working member you ask your superior and he will then say yes or no, or whatever the case maybe. If you are a student on course you will normally either go to the chief instructor and ask him permission to leave, or the course leader if you need to leave early, or you write a letter if you know prior to when you want to leave, let's say you want to leave within two days you can write a formal letter and say "I need to be excused" at that specific day.
PROSECUTION COUNSEL Ms PAKENDORF:   And would that be so then for the Junior Command and Staff Duties course also?
STATE-WITNESS COLONEL EDDIE DROST:      For sure, for sure.
PROSECUTION COUNSEL Ms PAKENDORF:   I just want to confirm this, Junior Command and Staff Duties stands for?
STATE-WITNESS COLONEL EDDIE DROST:      Junior Command and Staff Duties course.
PROSECUTION COUNSEL Ms PAKENDORF:   Thank you, Colonel. Now if a student was to come in earlier, it sounds from what you have just told the court that he would cet that sort of instruction from the student leader or some sort of body who is in control of the students?
STATE-WITNESS COLONEL EDDIE DROST:      Positively, that is their own internal student arrangement that they make, and which they conform to.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay,_ Now ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, May ... can I just object ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: ... I just want to indicate to ... (uncles     objection
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Yes?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: ... Judge, which we would like to place on record (1) is that prosecution counsel must not, in our submission, no objection, lead the  witness. (2) The witness must testify and .in relation to the charges for which he.......has been identified to be a witness: It must be clear as to which charges v.e are dealing with in his evidence and I would presume an indication would s_iffice from counsel to say, the member has been charged of this and you are the witness in that regard, could you tell thecourt what's all about insofar as he has contravened this. The general statements- and terms on the JSD and where the college is located perhaps counsel would have, in his (her) opening statement briefed the court that, you know, the case relates to events that took place at such a place and you know and this is a college, but we expect from the side of defence that when a witness is called and is on record that he's going to testify on certain charges that he testified on that, that is our objection, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         You don't need to answer.
PROSECUTION COUNSEL Ms PAKENDORF:   As the court pleases, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         You don't need to answer.
PROSECUTION COUNSEL Ms PAKENDORF:   I would like to answer, Judge,
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you, I won't give you an opportunity. In respect of leading questions whereby you do say to the witness I assume, or I presume or is that then correct May then lead to a leading statement to a witness, quite correct. Secondly, the second aspect is denied there is no such instance as that there is an obligation upon the prosecutor to only lead her or his witnesses in respect of certain charges, specifically the first witness in the case, and specifically at the start of his evidence certain background information maybe extracted from such a witness to place the court in a position to understand the proceedings, or the events rather, against a certain background, so I will allow that under the circumstances. Please proceed.
PROSECUTION COUNSEL Ms PAKENDORF:   Thank you, Judge, as the court se pleases, I was in any event going to move on to the incident at hand before this court today. Colonel, it is alleged that on 7 March 2001 there was an incident where you were involved and where The Accused was involved, can you tell the court about that incident please?
STATE-WITNESS COLONEL EDDIE DROST:      This incident on 7 March took place at more or less plus 12:00/12:45 where I had Colonel Phiri on office orders to c.ve him feedback and to inform him with regard to what was happening to an incident between himself and Colonel Johannes Hendrik Beyers Kleynhans so the idea was to give him feedback and to say to him "this is where we stand with regard to the system, and the whole incident that happened and this is what I am going to do."
PROSECUTION COUNSEL Ms PAKENDORF:   Sorry, Colonel, where was this ... where were the orders held and who was present?
STATE-WITNESS COLONEL EDDIE DROST:      Okay.    At that specific time I had a double-hat appointment, I was the acting commandant and I was also tne chief instructor at the Senior Command and Staff Duties branch, so these orders took place in my office at the chief instructor's office of the senior command and staff duties branch and the person who joined me there was Colonel Raymond Lentsoe who was the course of the Junior Command and Staff Duties branch so he brought Colonel Phiri in on orders and ... I do not know, do you want me to carry on with the whole incident?
PROSECUTION COUNSEL Ms PAKENDORF:   Yes, please carry on.
STATE-WITNESS COLONEL EDDIE DROST:      Okay.
PROSECUTION COUNSEL Ms PAKENDORF:   I'll stop you if I need specific points from you.
STATE-WITNESS COLONEL EDDIE DROST:      Okay. So at 12:45 Colonel Phiri finally pitched up and then we decided now is the order time. So Colonel Phiri was Marching in in the orders, he Marched in, he halted, made a left-turn and immediately he came to a st... he immediately went and stood at ease. I then said to him this is a formal office bearing so he had to stand at attention.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay, when you say "formal office bearing", what are the usual drills?
STATE-WITNESS COLONEL EDDIE DROST:      The usual drills is a guy Marches in neatly, he makes a left-turn and he stands there and he salutes, in his case as en officer he salutes and then he stands at attention and then the whole office bearing is finalised, he salutes, he makes a left-turn and he Marches out of the office once again.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay. So are there any other positions that the attention that you mention?
STATE-WITNESS COLONEL EDDIE DROST:      No, there's no other positions.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay. Please continue, Colonel.
STATE-WITNESS COLONEL EDDIE DROST:      Okay.    Then after I reprimanded him to stand at attention he physically showed his displeasure by staying at attention but looking up in the air, rolling his eyes and I got the idea that he was highly agitated with  what was happening at that specific ... or in that office.
PROSECUTION COUNSEL Ms PAKENDORF:   Sorry, Colonel, just for the court to have information, when somebody stands at attention, what is required of his body ... or how should his body look?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         The court takes ... (unclear) ... standing at attention meansin the military. Thank you, you May proceed.
STATE-WITNESS COLONEL EDDIE DROST:      Okay. Righto, I then asked him whe-e he was on the 6^th and on the 7th because he was supposed to be at work and I was supposed to give him feedback already on the 6th and on the morning of the 7th as this was already at 12:45. He then refused to answer me initially, and then again I asked him, "Colonel, where were you on 6 March", the next moment he said to me, "go ask my lawyer." I said "Colonel, where were you on 7 March, the morning", "go ask my lawyer", so I was a bit taken aback by these comments that he made and I saw that we were going nowhere with regard to this question, so I then gave him a formal order to write me a statement, or a paper telling me where he was and he had to hand that paper in at 08:00 the next morning on the 8th. I then proceeded by informing him that I have received both Colonel Johannes Hendrik Beyers Kleynhans' incident report which I also provided to him
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Sorry, could you just repeat that, you ..?
STATE-WITNESS COLONEL EDDIE DROST:      I have received Colonel Johannes Hendrik Beyers Kleynhans' incident report ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Yes?
STATE-WITNESS COLONEL EDDIE DROST:      ... which I went through and I also received his incident report after responding to Colonel Johannes Hendrik Beyers Kleynhans' incident report, and that I've read  through it and that I was then going to convene a commander's 'investigation because I could not make a decision on who is right and who is wrong, and that he then had to report to Colonel David Mazunganya 1 3:30 to do the commander's investigation that day. I then asked him to read through the paper, the incident report that I had, or the orders report that I had in front of me and to sign it, he then flatly refused to sign it and in the word of "I won't, I won't". I have asked him twice to read through the report and confirm it, and he said he would not do so. Then I asked him and I said, "Please, Colonel, you are a Colonel I address you by rank i think it's proper for you to address me by my rank as well" and then the next moment there was a ... like the marine corps guys go, and he said "Yes, Colonel" and he was shouting at me whenever I asked him "Yes, Colonel" or whatever the case maybe.
PROSECUTION COUNSEL Ms PAKENDORF:   What was your impression of that?
STATE-WITNESS COLONEL EDDIE DROST:      Jis, I was strictly taken aback, I could not believe what was happening here in front of me, .1 thought it was totally out of line for a senior officer to react in that specific way. I then asked him ... or I then excused him as well from my office. The next moment he asked me what happened ... or if I received the document, or the redress of wrongs that he forwarded to me against General Mashuala. I said to him, "Colonel, no, this is not the time to discuss that now, this is formal office orders we can discuss that later", he did not want to leave the office, I then again said to him "Colonel, you are excused", he did not leave the office. The third time I said to him, -Colonel, you are excused" finally he made a left-turn, he Marched off to the door, suddenly he stopped, he halted, he saluted towards the door and he looked to me and he said, "Colonel, salute me, Colonel, salute me. Oh! You don't want to salute me" and shoops down the corridor he went. Stood there in total amazement, and when he was down the corridor I said to Raymond Lentsoe, "just confirm, I saluted and he was off", and that is what happened on that specific day.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay. If you were to give a label to Colonel Phiri's attitude to you on that day, what would you call it, how would you label it?
STATE-WITNESS COLONEL EDDIE DROST:      Well, he was totally un-disciplined to my opinion, and he was actually ... well, I got the idea, and I felt that he was challenging authority from the minute he stepped into that office, and that only ... or that feeling was aggravated as we carried on.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay. Now I want to take you back one day to the feedback session and the Inspector General enquiry, who was present at the Inspector General feedback session?
STATE-WITNESS COLONEL EDDIE DROST:      Okay, the Inspector General feedback session took place on the 6th at 15:00, all the Directing Staff’s and the chief instructor, and the course leader as well as all the students were supposed to be there, and I was also attending that specific feedback session.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay.    Now if you could just give the court a background, how did it come that there was this feedback session?
STATE-WITNESS COLONEL EDDIE DROST:      Okay. ..Okay, it's actually a long stet;, there was a lot of call it politic bickering between the students, and those type of things, there were allegations made that the Mufassa, who is the course cha"-nan made political speeches and all those type of activities as well. And then t'ere was a ... I think it was a Swedish visit where they once again said that tne Mufassa made political speeches, and finally it was with regard to the final f...-otion of the mobile phase where the Mufassa once again made certain statements which, according to some of the people, were not in line. I was informed abo_t this by Lieutenant Colonel Lentsoe and I then said "well, I'm not going to try and investigate this whole matter" so what I did is I phoned the then training for—ation commander, General Stein and I said to him "please come and investigate :ne allegations that is made here, I think it is out of the college's authority to do tnat specifically. and we need ... what is "onafhanklike?"
PROSECUTION COUNSEL Ms PAKENDORF:   Independent.
STATE-WITNESS COLONEL EDDIE DROST:      ... independent opinion about this whole thing. What happened then was the Inspector General was appointed to do the investigation.  They did the investigation, they finalised the investigation and they were then  ordered by, I assume, Chief of the Army to give feedback to the students with regard to the findings of that board, and that happened on the 6th at 15:00.
PROSECUTION COUNSEL Ms PAKENDORF:   All right. Was Colonel Phiri present?
STATE-WITNESS COLONEL EDDIE DROST:      No, he was not present.
PROSECUTION COUNSEL Ms PAKENDORF:   Was he required to be present?
STATE-WITNESS COLONEL EDDIE DROST:      Yeah, I think he was required to be present.
PROSECUTION COUNSEL Ms PAKENDORF:   You think?
STATE-WITNESS COLONEL EDDIE DROST:      No, he
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Right, to ascertain, were you present at that session

9)      yourself?
STATE-WITNESS COLONEL EDDIE DROST:      Yes, I was present there, yeah.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you.
STATE-WITNESS COLONEL EDDIE DROST:      He was definitely required to be there, yeah.     All the students had to be there.
PROSECUTION COUNSEL Ms PAKENDORF:   All right. And do you know of any reason that he was not there?
STATE-WITNESS COLONEL EDDIE DROST:      Well, I later received his document where he stated the reason why he was not there. Now if I can ...
PROSECUTION COUNSEL Ms PAKENDORF:   Okay, now ... sorry, Colonel, this is now the letter that you refer to, or the statement that you required the feedback on the previous two days ...
STATE-WITNESS COLONEL EDDIE DROST:      That's positively, yeah.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay.
STATE-WITNESS COLONEL EDDIE DROST:
PROSECUTION COUNSEL Ms PAKENDORF:   All right.
STATE-WITNESS COLONEL EDDIE DROST:      And in that document he said that, if I can remember correctly, that h e had  an arrangement with Colonel Lentsoe for 15:00 that afternoon, but that he was writing some or other document and that he overstepped the time, and that he then directly went to Chief of the Army to hand his side, or his response to certain documents as well.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay. This feedback that you received, Colonel, you earlier testified that you required that feedback on 8 March, at what time was it again?

10)   STATE-WITNESS COLONEL EDDIE DROST:      I had to have it by 08:00 on 8 March, I did not receive it at the 8th, I received it somewhere through the day. I can't exactly remember the time that I received it, but I did not receive it 08:00 that morning.
PROSECUTION COUNSEL Ms PAKENDORF:   Okay. If the court can just bear with me for two seconds? Is there anything else that you want to tell the court regarding this incident?
STATE-WITNESS COLONEL EDDIE DROST:      I think what is important is just to understand the context as well of the whole thing. The whole story started off on 2 March where I actually had Colonel Phiri on office orders after receiving the incident report of Colonel Johannes Hendrik Beyers Kleynhans. When I got him on office orders I said to him, "here is the incident report and the statement written by Colonel Johannes Hendrik Beyers Kleynhans which is vital because it accuses you of certain things."
PROSECUTION COUNSEL Ms PAKENDORF:   Uhuh?
STATE-WITNESS COLONEL EDDIE DROST:      So to give him a fair chance to react to that as well, I asked hiM "go through this document and then on Monday 08:00 provide me with your side of the story as well." Once again, on Monday 08:00 he did not provide me with the document, and I also received the document later that day only. Then I started, and I asked that he come on office orders on the 6th which I think it was more or less 12:00 where I asked the first ',Me that he appears before me on office orders so that I can inform him of what is going to happen after the commander's investicatioft he was not available. Then I said to Colonel Lentsoe "you've got leeway through the day, go get him and whenever he's available let him come" and I never saw him on the 6'. On the 7th I had a communication period with my students, my own senior students that morning, and directly thereafter I once again phoned and I said, "is Cc'cnel Ph i available" and he once more was not available. The first time that I say Colonel Phiri

11)   PROSECUTION COUNSEL Ms PAKENDORF:   Sorry. When you phoned you spoke td?
STATE-WITNESS COLONEL EDDIE DROST:      I spoke to ... I think it was Colonel Le-tsoe. J. The first time that he was available for office orders was more or less ... I think it was 12:45 that I saw him, but more or less in that vicinity; so this thing actually dragged on from the previous Friday up until the Wednesday.
PROSECUTION COUNSEL Ms PAKENDORF:   Thank you very much, Colonel.

12)   STATE-WITNESS COLONEL EDDIE DROST:      Thank you.
PROSECUTION COUNSEL Ms PAKENDORF:   Thank you for your time. Thank you, Judge, I've no further questions.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Defence?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, as indicated yesterday the defence will reserve cross-examination so that at the appropriate time when certain documents are available such investigations ... such cross-examination will be done. I can indicate to the court that instructions have been given and that are being worked on by the relevant attorneys to work towards the High Court motion.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         But I confirm, as between the postponement yesterday afternoon at              early afternoon, before I think 15:00 still and this morning has any such an application to the High Court been lodged?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: The ... Judge, we're in the courses of taking instructions, we ... there were consultations that took place yesterday between the member and a certain firm of attorneys, I've got the business card here, it's Ramotwala, ... (unclear) ... Incorporated and ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Is there a telephone number?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: The telephone number is available, It's +2712for Pretoria, 3234824.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         And the attorney of record?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: fVlafora Daniel Ramotwala.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Himself?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, it is Mr Ramotwala himself ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Excellent. Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, the ... i also had consultations on ... as instructed by client with the Legal Resources Centre.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Mm.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: And arising from that consultations the open democracy of South Africa was brought into play(?) and as ... after adjournments today I will get in contact with the lawyers of the Open Democracy Centre and Ramotwala to streamline those kind 'of instructions to get the documents which are necessary for this case, which include the investigating report which the court has heard about, The Accused's report.       
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you. Madam Prosecutor?
PROSECUTION COUNSEL Ms PAKENDORF:   Yes, Judge, prosecution wishes to place on record that we object to defence not leading cross-examination at this stage and specifically 35           with regards to the examination in chief which is already placed before this court.   Sufficient time and documentation has been placed in the possession of the defence, the defence team in order for them to prepare for cross-examination of this witness in his examination in chief as tendered before this court. I would therefore request that the court order defence to commence with cross-examination of the witness and that should there be cross-examination with regards to the documents that defence seeks to obtain, that they then reserve their right to cross-examine the witness with regard to those documents only then at that stage. As the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Any remarks to that?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge, they would be very short remarks. The remarks in this line that defence ... defence counsel conduct their own case and not the prosecution's case, that the defence in the interests of The Accused member and with regard ... with ... in consideration also to The Accused member's constitutional rights him being afforded the relevant opportunity to prepare his defence that is in accordance with those rights and that would be his cross-examination is reserved so that the ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Just one moment, for the helicopter to pass.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes. The essence of the response, Judge, is the constitutional rights of the defence, The Accused to prepare his defence and to have all the documents he wants, he requires to do that. And that the cross-examination is reserved in entirety at in the interest of the member and in the discretion of defence counsel as to how it will be conducted. It is not for the prosecution counsel to dictate how the defence must conduct its case. This is our submission, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you very much. The count will stand down to consider the application. The timeinow is 08:33, 10:30, of tea we will make known our finding whether a postponement be oranteO to allow the High Court application to proceed before cross-examination should take place, or whether cross-examination shall take place irrespective of whether there is an application to the High Court. Colonel Eduard Frans Drost, you May stand down, if you could be available then at 10:30. Thank you very much.
STATE-WITNESS COLONEL EDDIE DROST:Will be, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you, Kolonel. Kolonel? Kaptein? The time then
is 08:34 and the tape is to be stopped.
((Court closes) to consider application)
(End of tape 3)
(Transcription continues on tape 4)
((Court re-opens))
FINDING

MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Regarding the instruction that Colonel Phiri supplied to his defence counsel not to continue with cross-examination in this matter pending an application to the High Court, or an order to release certain documentation that they would require for cross-examination of this witness, and the following I find of relevance. In the matter of the S v Strowitzki, 1995 (1), SALR 414, a Namibian case the following was said and I quote:

13)   "It is clear that the court leaned heavily against allowing inter loquitra appeal in criminal cases ..."   as long ago as 1917, the reason for this was given by ,Tztclge Gregorowski in the matter McComb v ARM Johannesburg and the Attorney General, 1917, Transvaal Division TPD 717 at page 718 as follows, and I quote: "The idea of a trial is that it should as much as possible con ... I repeat, the idea of a trial is that it should be as much as possible be continuous, and that it should not be stopped. if this kind of procedure were to be allowed it would mean that a trial maybecome protracted and make extend over a number of months, the magistrate would sit on one day and hear part of the evidence of a witness, then the hearing would have to be postponed till the opinion of the Supreme Court could be taken perhaps a month or two later, thereafter the trial wouldagain be continued and after some months... I repat after some months and immediately it is resumed objection May again be raised in connection with some evidence with an application again to the Supreme Court and again back to the magistrate. I think that would produce an intolerable condition of things. I do not say the court May never interfere in the course of a trial before the magistrate, there maybe misconduct on the part of the magistrate or something of that kind, but when a case comes before a magistrate I think he must use his discretion and give his decision." That then what was said by Judge Gregorowski. Judge Hannah who presided in the matter of S v Strovvitzki then continued and says: "This approach has been reiterated time and again over the years, for example, in the matter of Wahlhaus and Others v the Additional Magistrate Johannesburg and Another, 1959 (3), SALR 113, an Appellate Division case where Ogilby Thompson, Judge Appellate at the time said at page 119, paragraph (e): "The practical effect of entertaining an appellant's partition would be to bring the magistrate's decision under appeal at the present un-concluded stage of the criminal proceedings against them in the magistrate's court. No statutory provision exists directing sanctioning such a course, not even if the preliminary points decided against The Accused by a magistrate be fundamental to The Accused's guilt will a superior court order ordinarily interfere whether by way of appeal or by way of review before a conviction has taken place in the inferior court."He then closes the quote from the F,ralhaL case and continues then at 120(b) the learned judge of appeal went on to approve the following statement in Gardner and LCInSC-10111n, Sixth Edition, (1) at page 715. I quote: "While a superior court having jurisdiction in review or  appeal will be slow to exercise any power, whether by a  mandaus or otherv.ise upon the unterminated course of m  proceeding§ in a court below it certainly haS the power to do so, and will dc so ... I repeat, and will do so in rare cases where grave injustice.. might. otherwise result or where justice might not by any other means be attained. In general, however. it will hesitate to interfere especially having regards to the effect of. such a. procedure upon the continuity of proceedings in the court below it, and to the fact that redress by means of review or appeal will ordinarily be available." That then in respect of what I wish to point out of the case of Strowitzki. I move  on, and I wish to refer to the matter of the S v Attorney General of the Western Cape and S v the Regional Magistrate, Wynberg not ... I repeat the reference is incorrect, not the state, it's S v Attorney General of the Western Cape and S v the Regional Magistrate, Wynbeg and Another, 1999 (2) SALR 13, a Cape Provincial Division case. I quote: "This cases raises the question whether given the circumstances of the matter a review is competent in respect of the aforementioned inter loquitra order made the magistrate, or whether it should await the final conclusion of the case. The leading case in this respect is Wo/haus & Others with the additional Magistrate Johannesburg and Another, 1959 (3) SALR 113, an Appellate Division case where the Appellate Division lays down the general rule that ordinarily there should not be inter loquitra appeals and reviews before finalisation of the criminal trial. In the course of his judgement Ogilby Thompson, Judge Appellate as he then was, said the following at page 119, paragraphs (d) to 120 (a) and I quote: "If an appellant's contends the magistrate erred in dismissing the exception and objection to the charge his error was that in the performance of his statutory functions he gave a wrong decision, the normal remedy against a wrong decision of that kind is to appeal after conviction. The practical effect of entertaining the appellant's partition would bring to the magistrate's decision under appeal at the present un-concluded stage of the criminal proceedings against him in the magistrate's court. No statutory provision exists directing sanctioning such a course nor, even if the preliminary point decided against The Accused by a magistrate be fundamental to The Accused's guilt will a superior court ordinarily interfere, whether by way of appeal cr by way of review before a conviction has taken place in the inferior court." I also wish to draw your attention to the matter of Lombard and another Esteerhuizen and Another 1993 (2) SALR 566, a Witwatersrand Decision for your discussions of the same principle. In this matter of State versus Phiri the decision by Colonel P R Venter stands, after he had listened to the evidence specifically brought before the court by way of The Accused himself testifying, and he has heard arguments about the required information requested by the defence. I do not intend re-deciding that issue, what I do find of importance in the decision of Colonel P R Venter is that The Accused seems to be well positioned to challenger the allegations in the charge sheet by virtue of his personal knowledge of the events at the army college. He further has the option of calling witnesses to substantiate his version of the events, he has the right to cross-examine state witnesses and put his version to them. I again considered the nature of the charges, that is specifically that they are not technical in nature that would typically require documentation to be placed before the court in the form of either expert witness or in the form of official documentation of the National Defence Force to prove or disprove the actual commission of the offence, such as orders that were not committed, fraud that maybeen committed in respect of subsistence in travelling, or leave, alteration of leave documentation, or official authority for absence from work, et cetera. Rather the conduct complained of are of simple occurrences and the question in the instance would be did they occur, or not. As I understand from the defence the documentation that is required is not so much to contest the octus reaos(?) in any of the instances complained of by the state but would rather be utilised to show the victimisation. Given the circumstances described by The Accused in his evidence before Colonel P R Venter, it appears that he should have plenty of witnesses whom he can call to substantiate such an allegation and that therefore he cou:d use such witnesses to the same effect that he intends to put the documents to use for. I fail to see why this court should be held up so a High Court application can be made to obtain documents that had already been ruled are not required for the defence's defence. Furthermore, it woucl appear to me that The Accused's prospect of success in such an application, given the authority I referred to above, is extremely thin. I therefore again will not postpone the matter pending a High Court application such as envisaged by the defence. Cross-examination is available to The Accused. Colonel Phiri, should you not make use of this opportunity to cross-examine the witness the possibility exists that the tender ... that the evidence tendered by this witness May in it's un-contested form constitute prima facie evidence of the elements he testified about, and May eventually be accepted as sufficient proof, note that in the case of S v van As, 1991 (2), SALR 74, a Witwatersrand Decision, the court had the following to say about failing to cross-examine inter cilia:
"It is a cornerstone of the administration of justice in South Africa and elsewhere that counsel should put his case to the witnesses for the other side, where, as in the present case The Accused's version has given in his evidence is that the particular state witness has committed perjury and that there was a fabrication of evidence by such witness, it follows from the decided cases that in appropriate case an inference must be drawn against The Accused where his counsel has not put the relevant question to the witness concerned. The inference is inevitable that The Accused when the cross-examination of the state witness in question was taking place, did not dispute the particular point and that he charged his version thereafter when testifying."  This court will not stand down to a ow time for the defence to first approach the High Court in the applicaticn envisaged by the defence, and that this shall continue. Colonel Simelane, if you now wish for this matter to stand down for 15 minutes so that you May take fresh instructions from Colonel Phiri, you May do so. Do you so wish to take fresh instructions?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: No, my ... I have instructions already, they are new instructions.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you. Right, then I once again afford the defence the opportunity to cross-examine the first state witness.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge my instructions still stand that we reserve the cross-examination of this witness Until such time that the relevant records are obtained. In view of the court's judgement now on this issue. and ...     
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Yes? You May continue.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: In view of the judgement as I've heard it, it would appear that there is a need for an urgent application to the High-Court, and we will need  the assistance of this court in getting the transcripts because the for the urgency ... to establish the urgency of this matter we should be able to relate to the present decision that the matter of this application we want to bring be on an urgent basis. It is not my intention to address the court on the verdict, of course yes, ... (unclear) not on appeal. But it becomes apparent to me, because the question of the nature of the application to be brought whether it would be urgent, or in the normal course the nature thereof it's become apparent that this application will have to be on an urgent basis and the urgency will be established by the record of proceedings of today. And I'm asking the assistance of the court on the basis that to experience and through the certain administrative orders I'm aware of from the Directorate of Judicial Reviews here at the SANDF that the records before the conclusion of the trial would not be made available, and if it ... unless it's required by the court or it's at the court's instruction, if it's required by the member it must be the member's expense. It is that point of view that I'm ... in fact I'm requesting the court's assistance in fact to get this  transcript, in fact the whole transcript from the 27th of last month when Colonel Colby recused herself and the recent proceedings that we have had, these transcripts will be useful to us, to the member, to The Accused in his pre... in his application to the High Court. Of course more importantly the pronouncement of today by the judge that they would appear they ... (unclear) ... they will address the issues of urgency. Yeah, there are distinctions, I'm aware of the ... (unclear) ... which the court has just mentioned and even that T'T/C77::11,5' case that the court has mentioned we were aware that the ... but what the judges were saying there, which the court mentioned in terms of you know it's not just a point which one can deal with on the question of there's a point ... (unclear) ... is appealing ... (unclear) ... In this case were dealing with a case of grave injustice. This case of this member has moved to the ... particularly of grave injustice, it's not a matter that could be dealt with by even appeal or review for more tnan one reason. From the evidence as we understood it from the witness, he ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         May I? You said you did riot want to discuss the decision and ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge,.thanks         
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         ... but you are actually going to 0: that now I see.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Okay, I'll rephrase. I'll rephrase. I can only ask the court's assistance for the records I've mentioned since the Colonel Colby's court  to the present court, if these records can be obtained at the direction of the court, and they will assist us as part of the instructions in this urgent application ... (unclear)

14)   MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         There is provision made for records to be transcribed and made available to a person requiring them for whatever purpose at the prescribed rate in the Military Disciplinary Code-MDC, so if ... certainly, you require them for this application I see no reason why ... of why you cannot make use of that procedure. If I'm not mistaken the request must be made to the GEOIC of Army Law Enforcement Satellite Office, Thaba Tshwane who shall then issue the necessary instructions in that regard. I certainly do not require them for myself, and seeing it ... as there is another procedure available whereby you can request such, I feel it unnecessary to make that an order of the court.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: You know, it's granted, really, Judge, we are asking the kind of direction from the court to obviate the question of cost, is ... the court is  aware the member is burdened with heavy costs and the nature of the application that he's bringing and we thought that if the court was to meet the member halfway, those costs would be obviated.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Right, ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: That is the nature of the request. really.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         I fully appreciate your request. I must however repeat that the decision is not mine to make. The instruction received from the adjutant general was clear that matters to be transcribed would. in the normal course of events, ... normal course of events I repeat, the plea ... the findings of guilty he did however allow for other matters also to be transcribed, and without saying that this is such an instance it could be that there is ... that he would see it to such a request from yourself, but as I pointed out the GEOIC of the Army Law Enforcement Satellite Office would be the channel for you to approach in that retard. I certainly do not require it for my own purposes, or for finding in this matter ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Which now, if I understand         was sr.nplj/ a request from your side for the transcription of the proceedings u; to now?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:.                Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Right?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes. We ... I presume we're z:ven no choice but the member will have to proceed at her (his) own cost to getiiimeansoriptions. The ... we will, of course, the court is aware now in terrhs of my instructions, reserve this cross-examination and everything being equal in the nature of if we ... assuming we'll be able to go in the nature of an urgent order we should be able to have these documents at the close of the state's case. And we will ask then these witnesses to be recalled because it is important ... it's not a quiz where we're saying we're not using ... I'm referring in particular to the authority of the court quoted in the last case mentioned, this van somebody, 1991 (2) ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: S v van As? Yeah, this van As case, we    the present member's case is distinguishable from the van As case where the member does not use the 10         opportunity to cross-examine.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: I beg your pardon, in the present case? Where the member in van As case where the member ...I'm sorry if I'm not audible, in ... where the member does not use the opportunity to cross-examine. I say, Judge, this case is distinguishable in the sense that the member wants to cross-examine this witness and he only reserved the right he has to cross-examine in order to cross-examine this member at a late:. stage. And at a later stage when presumably these documents ',,ill be available and a proper cross-examination will be conducted.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         All right.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Let me make the court's position c ear without raking a ruling whether you will be allowed to later cross-examine. I wish to reiterate that the opportunity now exists, and in the normal course of events this is the- where the version for the defence will be placed to the state witness, and the pcssibility exists, either way, that the witness maybe recalled for late' "..;ross-examination at a later stage, it's not impossible, but the possibility also exists that the curt May refuse such an application to recall the witness. [I: you, Colone Phiri, understand that?
GOODMAN MANYANYA PHIRI:         YeS, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:.                Thanks. I have no ... nothing furtne7 to useful to add,- Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         No cross-examination, no re-e-amination.  Any questions that you wish to .pose to the Colonel? ... (unclear) ... Any questions
QUESTIONS BY THE COURT:
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Could I, just for my own purposes, return to the incident where Colonel Phiri appeared before you on office orders, where you testified  that firstly he had to give you feedback formally by the next morning at 08:00 about his whereabouts on the previous instances, and then you went on to  testify about an OC's enquiry, if I heard you correctly, that had to be conducted.
STATE-WITNESS COLONEL EDDIE DROST:      Yeah.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Could you just explain that to me?

15)   STATE-WITNESS COLONEL EDDIE DROST:      Surely, Judge. What actually happened, and that is why I wanted to put it into perspective from the 2nd as well. I received an incident from Colonel Johannes Hendrik Beyers Kleynhans where he accused Colonel Phiri of being out of line and not adhering to certain standards, et cetera. So what happened then is after reading through that incident report I got the Colonel on office bearing the Friday to spe... to give to him the copy of that specific incident so that he could read, and so that he could also state his case in that specific regard. That document where he could react to the incident of Colonel Kleynhens had to be in on the Monday morning 08:00, with me. After I received both documents, as I stated I did not receive it 08:00 that morning, but I received it later in the day, after I received both ... or looked at both the documents and also Colonel Phiri's I looked at the documents and I said to myself as well, and I ... to be fair I think this has to go the way of a commander's investigation, and that is where the commander's investigation came from. I then decided that the whole case would be investigated by a commander's investigation to determine vihat route we have to go further forward, and then I got him on office tearing, or I wanted to get him on office bearing the 6th to tell him that I was going to convene tn:s commander's investigation. He was then not available and only on the 7 could I finally formally inform him that I'm acing to comene a commander's investigation with regards to this whoie issue.

16)   MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         "This v,hole issue , meaning the noident between hire and Colonel Johannes Hendrik Beyers Kleynhans?
STATE-WITNESS COLONEL EDDIE DROST:      And ... that's right, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:         Was such an investigation conducted?
STATE-WITNESS COLONEL EDDIE DROST:      There yes an investigation conducted then. yes, Sir-

MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: It now becomes clear, if I understand you correctly that the OC's investigation ordered by yourself ...
STATE-WITNESS COLONEL EDDIE DROST:              Yeah.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: ... is separate and of a totally different topic than the Army Inpector General by the name of Mr Enock Muiseng Mashoala investigation?
STATE-WITNESS COLONEL EDDIE DROST:              That's so, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Correct. Questions arising? Madam Prosecutor?
PROSECUTION COUNSEL Ms PAKENDORF:           None, Judge, as the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Defence?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:         Yes, Judge?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Questions arising from the questions by the court?
QUESTIONS ARISING FROM QUESTIONS BY THE COURT:
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:         Well, my only question there would be was it from that in... without cross-examining, just questions by the court that the commander's investigation was it based upon ... (unclear) ... the member was charged?
STATE-WITNESS COLONEL EDDIE DROST:              That is so, yeah.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:         Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:.               Colonel, thank you for your evidence. You're excused and you May stand down, you May withdraw.
STATE-WITNESS COLONEL EDDIE DROST:              Thank you, Judge.

Jacob Zuma (Mr) and some unnamable character