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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 TEN (10) 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
1) CASE RESUMES ON 13 July 2004.
2) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Time is 8:35 on the 13th of July 2004. It-was indicated to the court that the defence had something to share with the court before the court makes any final decisions regarding the application brought yesterday. Colonel Simelane?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases. Judge, my instructions this morning from Colonel Phiri is that when my learner colleague comes this morning, prosecution counsel I should request the letter to indicate that yesterday that ...(unclear) letter were handed in there were ...(unclear) between Colonel Wnono and the State Attorney in that our letter may well be ...(unclear). And after the court ...(unclear) apparently the letter was not yet available. And it is my instruction to check on the letter this morning in the event the letter is not ...(unclear) available to him and that in that fact must be placed on record that the letter has indicated from my learner friend, which were record later developments in the matter as regarding documents, has not been made available to him. And in short the letter does not exist. It is my instruction that the letter has not been furnished, in fact the court may not been told to the correct version because they have heard that the letter is not made available, confirm the fact that it does not exist, those are my instructions and I hope I have carried them out fully. As the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Madam Prosecutor, if I heard you correctly yesterday ...(unclear) corrected you did not even have such documentation yourself, my understanding was exactly that point that there has been consultations between the State Attorney and the Department of Defence whether it was indeed General Wnono ...(unclear) on that it was only in consultation and that it was not necessarily correspondence ... (unclear) in court yesterday?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases. Judge, my instructions this morning from Colonel Phiri is that when my learner colleague comes this morning, prosecution counsel I should request the letter to indicate that yesterday that ...(unclear) letter were handed in there were ...(unclear) between Colonel Wnono and the State Attorney in that our letter may well be ...(unclear). And after the court ...(unclear) apparently the letter was not yet available. And it is my instruction to check on the letter this morning in the event the letter is not ...(unclear) available to him and that in that fact must be placed on record that the letter has indicated from my learner friend, which were record later developments in the matter as regarding documents, has not been made available to him. And in short the letter does not exist. It is my instruction that the letter has not been furnished, in fact the court may not been told to the correct version because they have heard that the letter is not made available, confirm the fact that it does not exist, those are my instructions and I hope I have carried them out fully. As the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Madam Prosecutor, if I heard you correctly yesterday ...(unclear) corrected you did not even have such documentation yourself, my understanding was exactly that point that there has been consultations between the State Attorney and the Department of Defence whether it was indeed General Wnono ...(unclear) on that it was only in consultation and that it was not necessarily correspondence ... (unclear) in court yesterday?
3) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: ...(unclear). Yeah, it is not the defences understanding Judge, and that in fact my instructions are to indicate that ... (unclear) the court itself may indicated to Phiri that for. practical purposes ...(urc ear) proceed to the prosecution counsel after :.:(unclear) to ....(unclear) that letter if that would be inconvenient. The understanding are,..(unclear) those consultation that took place were recorded' and the letter was then confirm in such ...(unclear) the prosecution counsel which were not for some reason had ...(unclear) like it is either the letter is somewhere in transit ...(unclear) letter SCT.ewhere, this letter was supposed to be ...(unclear) and this letter was supposed to be ...(unclear), that is the understanding in court and it was for that reason therefore that I indicated to court or my instructions are to have Colonel Phiri himself has seen the letter instead of the letter been send to me because I knew that my problem was not going to take me long at the office and I beg therefore if my learner ...(unclear) the letter to me I may missed it and I may not get it and I may not this morning report at the office but come strait to the court that is why I cooperated ...(unclear) Colonel Phiri that or permission is granted ...(unclear) attend to obtain in the matter, thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I ...(unclear) what I said yesterday that ...(unclear) problem with your client obtaining such documentation, but I however ...(unclear) time was been so far as the agreement had been ...(unclear) it was certainly possible that it may have been and one would have like to think that it would have done so by yesterday. But the Prosecutor herself indicated that she did not yet receive such documentation and was under the understanding that it may have been ...(unclear) that Prosecutor and the Defence, Colonel Phiri can come to any agreement that they ...(unclear) the proceedings as such. But I take note; your client consumption that there is indeed no such agreement and that there is indeed no such ...(unclear). Thank you very nnuch. Anything else that needs to be raised?
PROSECUTION COUNSEL Ms PAKENDORF: Judge, I can just confirm that I have not received such confirmation ... (unclear) I did request Colonel Boshoff to indicate ...(unclear) but they could ...(unclear) court ...(unclear) the court so I had not received it as far as I was told. Thank you Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I ...(unclear) what I said yesterday that ...(unclear) problem with your client obtaining such documentation, but I however ...(unclear) time was been so far as the agreement had been ...(unclear) it was certainly possible that it may have been and one would have like to think that it would have done so by yesterday. But the Prosecutor herself indicated that she did not yet receive such documentation and was under the understanding that it may have been ...(unclear) that Prosecutor and the Defence, Colonel Phiri can come to any agreement that they ...(unclear) the proceedings as such. But I take note; your client consumption that there is indeed no such agreement and that there is indeed no such ...(unclear). Thank you very nnuch. Anything else that needs to be raised?
4) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: What have to be said as a final rema7k on what was now raised is that at best constitutes advise but you ...(unclear) attorney and its client and if I understand it correctly it is not an agreement between the State Attorney and Colonel Phiri ...(unclear). Having said that it therefore does not take the matter any further in so far as the basic ...(unclear) con:ention between the parties remain ....(unclear) of documents and whether it is available or if.the state . does not Want-to supply it. that remains to be resolved and it sin respect thereof. and the application for postponement by the state and tne argument of the defence that this court does not have the jurisdiction -.D des: with such postponements ...(unclear) and which to continue with ...(urolear). The rrHHt.ary disciplinary act ...(unclear), yeah the military disciplinary cote and the rn'HtarY disciplinary supplementary measures act or the rules in terms of the defence act does not particularly ...(unclear) a departmental court the authority to postpone matters for purposes of events such as this. But by ...(unclear) and ...(unclear) 124 I am entitled to take any proceedings that is consistent with the act and may then adopted those procedures in order to deal with the situation and I refer then to Section 168 of the Criminal Procedures act which simply state to the court may from time to time during such proceedings, if the court deems it necessary ...(unclear) during the proceeding that ...(unclear) under terms which the court may seem proper and which are not inconsistent with the provisions of this act ...(unclear) CPA, criminal procedure act. I then adopt this proceedings and that is indeed in the first instance that we did when we postponed or when the court postponed this matter to the, when the matter first came before the court in so far as a court order was made that document had to be supplied and the court was presented with a order by the High Court. Now I have considered the argument by the defence that this court once having been ordered to have stayed the proceedings, Colonel? Yeah, thank you. That this court is ordered by the High Court to not come together in this matter, not sit in this matter at all until such time as the matter between Colonel Phiri and the state in respect of the provision of the documents have been concluded in its totality. And that should the court continue to have Colonel Phiri appear before it as we are doing no,,,v in th:s court is in bridge of that court order and that it may even cons'itute contempt of that court order. Now one or two remarks that needs to be made is. that I find instructive Chief Justice ...(unclear) remarks in case of Rex vs. Heckpoort 1928 ...(unclear) division, 1065 where remarks at page 277 of Criminal trial: Is not a game, the one side is entitled to claim the benefit of any admission of mistake made by the other side. And the Judges position in a criminal trial is not merely that of an empire to see that the roomers of the game are applied by both sites. A Judge is an administrator of justice not mereiy the figure it and ,he. has not only to see, he has not only to direct and control. the - proceedings according to recoanize the rules of procedure that to see that justice is done." Close the quotation in that respect. Ciearly a role that a age pays is as the chief justice said not merely that of a bystander observing that everybody remains within the boundaries of the rules. If the court has an active role to execute in seeing that matters are dwelt with and that justice is done in the process. Having said that I'm of the opinion that we are dealing with two parallel proceedings, the first proceedings being the criminal charges brought against Colonel Phiri by the military prosecution and that parallel to that runs the application the High Court for the documentation to be supplied to Colonel Phiri that he has required and that in that process then he makes use of a civilian attorney, Masiza attorneys and that process is also well known to all the parties. I do not wish to put the one procedure before the other in and its eminence and I agree that the one is independent upon the other in so far as the High Court rule that the documentation is indeed or that rather Colonel Phiri is indeed entitled to the documentation that he approached the court for and to that effect that this court will not continue with the hearing until such time as that matter had been put aside and all the aspects therein had been dwelt with. I however looked at the court order that was made by the High Court per Justice Claasen and he merely orders that the order made in terms of prayer 2, 3, 4 and 6 of the notice of motion be made an order of the court. The notice of motion says that the hearing of the departmental judges court be stayed pending the orders approach for under prayers 3 and 4. Prayers 3 and 4 then respond to the documentation, it must be furnished and concludes that these documentation or the documentation must be provided within seven days of the date of the court order. Now I'm of the opinion that when the court says as with reference to the matters of motions that the hearing be stayed.
5) It intents to refer to the criminal trial in essence that is to say that it deals with, it refers to the contention by the state that Colonel Phiri committed certain offences and that part of the proceedings that relate to the state endeavouring to prove those allegations and with tine accused defence against such allegations. That is the primary issue that concerns this count and it is my opinion that that is what must be stayed per tne High Court order. Keeping in mind that his court has an active role to play and :hat this court needs to keep taps on any ancillary matter that has an effect on.thls court, exactly such as this High Court action Colonel Phiri brought for the supplying of the documentation. I cannot understand why this court should postpone this matter sine die. The court does not deal with the substance of any of the aliec,iations by the state against Colonel Phiri, the court convenes for the purpose of finding whether the defence, Coldnel Phiri in person is been properly supplied with the documentation he requires and if not then only this has been the reasoned history of this case to postpone this matter pending the final outcome of that matter. This court does not deal with the substance of that inquiry, that is to say whether Colonel Phiri has indeed been supplied with all the documentation he required, it is my opinion that that is indeed a matter for the High Court to decide. The application was brought to the High Court, the High Court ordered that the documentation be supplied, the documentation must have been supplied within seven days and it is the contention of Colonel Phiri that that had not had happened and obviously to my mind Colonel Phiri must then go back to the High Court that this order that you have made as far back as March, 23rd of March 2004 had not been complied with by the respondent's and that further relief is therefore seek. Now what further inspire me to keep a hand on this case are the time frames. For on the 23rd of March 2004, this order was made, an order of the court and in terms of the notice of motion drafted by Colonel Phiri's representative they fully expected the state to have complied within seven days thereafter, which obviously has not happened for we are now in the month of July. A good four months later and st.,i Colonel Phiri is not satisfied with the respondent's compliance with the court oiler.
6) Certainly it would appear as if the matter was not left totally untouched and as if Colonel Phiri via his representative engaged to state in conversation and consultations and trying to allay this viihole matter. But as some stage it must either appear that a ...(unclear) had been reached and that further High Court interference is necessary for this matter to be resolved. I am not going to wait sine die for Colonel Phiri to exercise his riohts. I am going to postpone this matter to a specific date with the express purpose of giving Colonel Phiri opportunity to either insist that the court order be executed in full via an application that was intimated to the court may fct-icoming to the High Court for exactly that purpose or if he choosc=sto abandon t:re application for the outstanding documentation .then obviously that can also been indicated. to, the court on a return date to have been the case at which date the court will then decide whether either to place the, to decide on a date f:7 the matter to be continued, that is to say the actual trial in this matter or if ...(undear) by that date they can be supplied to the court prove that Colonel PT :Ti is indeed serious with the enforcement of the original court order that is to SC, by means of proving that the matter had been placed with the register of the High Court. The court will then obviously look at the further postponement date in order to give Colonel Phiri the opportunity to advance this matter with the High Court keeping in mind the time scales Colonel Simelane was so kind as to point out yesterday that is applicable to High Court actions.
7) In a nutshell the court will not postpone the sine die the court will postpone the matter for a fixed period to a fixed date at which date the court will then again be informed of the status of this matter, that is the matter between Colonel Phiri and the state relating to the documentation upon which date a further decision will be made as to further postponement whether for trial or for the outcome of a High Court action. Lastly I wish to refer to the whole issue of contempt in the matter of Nkero (?) Taxi Service Association vs. Maningwa (?) and other 1998 volume 2 South African Criminal Law Report on page 166 an Eastern Cape division case page 168 appears a quotation of the leaner author Melius De Villiers in his book: The Roman and Roman Dutch Law of Injuries. Where they at page 166 divine contempt of COU7 as follows: "It is an injury committed against a person or body occupying a public tradition office by which injury the dignity and respect which is due to such an office or its authority in admih:stration of just ce is intentionally violated". I further wish to refer to the letter of Masiza attorneys dated 7 July 2034. Where they in paragraph 2 requests the State Attorneys to advice tne military that the military should advice the departmental court to postpone this matter sine die until full compliance if the court order is finalised. Which is in itself an understandable request and then Mr Masiza continues: "Failure upon which we advice that our client would in the circumstances be subjecting all the respondent to content of court" And then as we all know that higher consequences of v.h.ch would not be necessary. I wish to express my reservation whether the f:.-mlat and tough of this .paragraph is in itself not contentious. Certainly .the court can ,for. decide Whether conduct is indeed in contempt and the, not e. en veiled but very direct, threat that flows from this paragraph is not appreciated Having said that what remains to be decided as a suitable ...(unclear) to which :,is matter car be postponed. The court suggests a date in October. .1 -eed to know the 155 availability of the defence, accused and prosecution counsels for the week, the 4th or prefer the 6th, 7th of 8th of October 2004.
PROSECUTION COUNSEL Ms PAKENDORF: Judge, the state is not available on the 8th but I am available on the 6th and 7th also. Judge, thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The 7th possibly?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: I may have missed the dates?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The 7th of October.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah, that the 7th is not convenient for us but the 8th is so is the 4th and 5th.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The 8th you are not available?
PROSECUTION COUNSEL Ms PAKENDORF: I can move it, it is only our general courtly meeting and if this matter takes presidency it might only be a postponement so I will still make the rest of the meeting, it is not a problem.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right, then the 8th, 9 o'clock.
PROSECUTION COUNSEL Ms PAKENDORF: Thank you Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Colonel Phiri, then we will meet again on the 8th of October 2004 in Court A. Thank you, Colonel you are excused. Thank you Mr Court Orderly, the time is 9:02 and the tape will be stopped.
PROSECUTION COUNSEL Ms PAKENDORF: As the court pleases.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The 7th possibly?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: I may have missed the dates?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The 7th of October.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah, that the 7th is not convenient for us but the 8th is so is the 4th and 5th.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The 8th you are not available?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right, then the 8th, 9 o'clock.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Colonel Phiri, then we will meet again on the 8th of October 2004 in Court A. Thank you, Colonel you are excused. Thank you Mr Court Orderly, the time is 9:02 and the tape will be stopped.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases.
8) CASE RESUMES ON 8 October 2004.
9) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The matter was postponed until tPday with review to get the prosecution opportunity to provide the defence witle. documents requested and was ordered per the Hich Court to be provided and some conditions were set. Could the defence enlighten the court was to what is the status of the provision of the documents at this point in time?
10) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases. Judge, vie, The Accused and his civilian attorney and myself attended a meeting.at,the state .attorney on the 21' of September and the Department of-Defence was represented at that meeting by General Wnono. The state fair.edto provide the qc:.:ments as required by The Accused in this matter and the matter therefore was rot resolved.
11) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right. could we, pardon for 'interrupting you.
12) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But could we be specific. The state failed to provide which documents? The court order to the High Court made mention of a specific document, several specific documents.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, in fact all the documents are not provided. The
meeting ...(unclear) on the very first item of the Inspector's General's report, they wanted The Accused to accept a certain due briefing statement and not the report itself was not provided and this was not acceptable to The Accused.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: So you are looking at the IG-report?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: The IG-report and Judge, all the documents listed there specifically in the order and also the documents listed under documents which The Accused may require for his defence, which would then include the ministerial investigating report in respect of the racial conflict that took place at the South African Army College (in Pretoria).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But could we be specific. The state failed to provide which documents? The court order to the High Court made mention of a specific document, several specific documents.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, in fact all the documents are not provided. The
meeting ...(unclear) on the very first item of the Inspector's General's report, they wanted The Accused to accept a certain due briefing statement and not the report itself was not provided and this was not acceptable to The Accused.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: So you are looking at the IG-report?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: The IG-report and Judge, all the documents listed there specifically in the order and also the documents listed under documents which The Accused may require for his defence, which would then include the ministerial investigating report in respect of the racial conflict that took place at the South African Army College (in Pretoria).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
13) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Conflict.
14) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Ministerial Investigation report?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:Yes. Into the South African A-my College Rational
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:Yes?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, the State Attorney has since written a letter which was to the secretary for defence which was copied to Mr rasiza and through his kindness and The Accused kindness we have the copy of -.7s letter and I would like to hand it in, which indicates how the State Attorney sees the way forward in this matter.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Have you been proVIDED with a copy?
PROSECUTION COUNSEL Ms PAKENDORF: I have, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Do you have a copy v..th you?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: I have a copy, Judge. maybe I ce.-1 read the letter into the record?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:Yes. Into the South African A-my College Rational
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:Yes?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, the State Attorney has since written a letter which was to the secretary for defence which was copied to Mr rasiza and through his kindness and The Accused kindness we have the copy of -.7s letter and I would like to hand it in, which indicates how the State Attorney sees the way forward in this matter.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Have you been proVIDED with a copy?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Do you have a copy v..th you?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: I have a copy, Judge. maybe I ce.-1 read the letter into the record?
15) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: If you please?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes. I don't know if whether I'm (unclear) I have to...(unclear). Judge, I'm reading a letter that is dated October 2004 it is addressed to the .secretary for defence, Department of l'e.fence, Private Bag X137, Pretoria. It is faxed to +2712392 2811 for the attention of Brigadier General Wnono which is incorrectly spelled as W-n-o-h-o. stead of N-0 at the end. The title of the matter is M.G. Phiri /-Minister of Defe-:e.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes. I don't know if whether I'm (unclear) I have to...(unclear). Judge, I'm reading a letter that is dated October 2004 it is addressed to the .secretary for defence, Department of l'e.fence, Private Bag X137, Pretoria. It is faxed to +2712392 2811 for the attention of Brigadier General Wnono which is incorrectly spelled as W-n-o-h-o. stead of N-0 at the end. The title of the matter is M.G. Phiri /-Minister of Defe-:e.
16) 1. "The meeting held on 21 September 2004 at cur offices, at our office refers."
2. "I kindly confirm that it was a great during the above mentioned meeting that the hearing at the departmental court would be postponed ...(unclear) until the issues of compliance/non compliance has been sorted out."
3. "In view of the fact that the parties failed to reach agreement on the issue of the compliance with the High Court order, I am of the opinion that you should approach the High Court for an order that the respondent have complied."
4. "You are kindly requested to approach the AC, - In not sure what the AC means there. The Army Counsel? Okay - The Army Counsel is AC for the Army Counsel and request a copy of the final report referred to in the decision brief to the AC on the alleged ration disharmony at the South African Army College (in Pretoria). Alternatively an avid davit by the person who was furnished with the decision brief confirming that the decision brief constitutes the final report referred to in it. I am of the view that such report or avid davit will be used in support of the application to the High Court. " "And lastly I trust the above to be in order ah,i I wait you- urgent response." It is sianed by A.J.F Mogale, Ms, for the State Attorney F7etoria. It is copied to marked Stratihof (?), incorporated attorney for the refe-ence of Mr .,lasiza. J100/04. Mr Masiza previously practice on his own acco..:ht; he has ncr.v joined this company. And this letter has been furnished to asked therefore and we wish to file it as of record and the contents speak for themselves. I understand this advice to be saying that if the state continues to ma'ntain that they have complied, they have to demonstrate that to the High Court and seek to exonerate them from the order of the particular court. ...Lnd so far as these proceedings as well as concerned that the question of the, which bogged us previously as to the staying, -compliance with the High Court order in to staying. the. proceedings was a departmental court, whether postponement' toa fix.da:e is in compliance or is in contempt of that order. As the state att:-_--ney indicates it was agreed at that meeting that compliance would entail postpcherneht ...(unclear) and this conformation is then provided. And the stare would need that ...(unclear) decide to approach the High Court to be able say on oat:- that they have complied and until this compliance even with the order to state the proceedings of the departmental court I don't think they will be able to take the matter further to the High Court. Without facing charges of contempt. Finally Judge we request then an postponement ... (unclear) until this state decides to resolve the matter either in accordance with the State Attorney's advice or in any other manner they think the matter May be taken forward. This is our submission.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you very mush.BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Madam Prosecutor?
PROSECUTION COUNSEL Ms PAKENDORF: Yes, thank you Judge. The state just wishes to start off with referring to the courts ruling on the 1 3tn of July. Where the court referred to the case of Rex vs. Heyworth, indicating that a trial is no game and that it seems to be dealing with accused maintaining that the state has not complied despite the -fact that the state-ha-s--oo-n-tented. it has complied. Eve7, on the 6th of July and 13 proceeded to do so on the 12'h of July before this honoerable court. On that day this court also rolled that the case will not be postponed ...(unclear) that it is going to be postponed to today for The Accused either to bring prove that he is seeking relief from the High Court or that he is going to atandoned that avenue and we then therefore postpone today for a set trial date. Now the state would like to content that when the High Court ordered the Department of Defence to hand over certain documents those were: The SA Arm?. IG-report, the OC's investigation that Colonel Eduard Frans Drost ordered, the B-mat intervehton repOrt retarding the incident at the Army College during January and Febr,....ary 2001, the fact is that the Department of Defence indeed handed over these documents, specifically the first and the second set of documents on the S'h of April 2004.
2. "I kindly confirm that it was a great during the above mentioned meeting that the hearing at the departmental court would be postponed ...(unclear) until the issues of compliance/non compliance has been sorted out."
3. "In view of the fact that the parties failed to reach agreement on the issue of the compliance with the High Court order, I am of the opinion that you should approach the High Court for an order that the respondent have complied."
4. "You are kindly requested to approach the AC, - In not sure what the AC means there. The Army Counsel? Okay - The Army Counsel is AC for the Army Counsel and request a copy of the final report referred to in the decision brief to the AC on the alleged ration disharmony at the South African Army College (in Pretoria). Alternatively an avid davit by the person who was furnished with the decision brief confirming that the decision brief constitutes the final report referred to in it. I am of the view that such report or avid davit will be used in support of the application to the High Court. " "And lastly I trust the above to be in order ah,i I wait you- urgent response." It is sianed by A.J.F Mogale, Ms, for the State Attorney F7etoria. It is copied to marked Stratihof (?), incorporated attorney for the refe-ence of Mr .,lasiza. J100/04. Mr Masiza previously practice on his own acco..:ht; he has ncr.v joined this company. And this letter has been furnished to asked therefore and we wish to file it as of record and the contents speak for themselves. I understand this advice to be saying that if the state continues to ma'ntain that they have complied, they have to demonstrate that to the High Court and seek to exonerate them from the order of the particular court. ...Lnd so far as these proceedings as well as concerned that the question of the, which bogged us previously as to the staying, -compliance with the High Court order in to staying. the. proceedings was a departmental court, whether postponement' toa fix.da:e is in compliance or is in contempt of that order. As the state att:-_--ney indicates it was agreed at that meeting that compliance would entail postpcherneht ...(unclear) and this conformation is then provided. And the stare would need that ...(unclear) decide to approach the High Court to be able say on oat:- that they have complied and until this compliance even with the order to state the proceedings of the departmental court I don't think they will be able to take the matter further to the High Court. Without facing charges of contempt. Finally Judge we request then an postponement ... (unclear) until this state decides to resolve the matter either in accordance with the State Attorney's advice or in any other manner they think the matter May be taken forward. This is our submission.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you very mush.BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Madam Prosecutor?
17) A copy of which is with the prosecutor when it was handed over by signature of General Du Preez to the offices of learner colleague. In subsequent letters and avid davits that is an indication from the Department of Defence was that the IG-report is not the c-e that The Accused necessary is the one he wants. The states .centention .is Thetis what there is, it does not exists the report that he contents there - That vv-a-e no minutes held on the B-mat intervention report which he also requi ed and that therefore the test is that the High Couit when the High Court hands down the orders whether it is reasonably and fairly possible to comply with it and the -state has -done so. General Wnono on the 22'd of September faxed a letter to the office of Legal Advice and Litigation at Army Law Enforcement Satellite Office Thaba Tshwane in paragraph 4 indicated:
"After a lengthy meeting and despite everything reasonably possibly done by the Department of Defence to comply with the High Court order the 5 applicant is of the view that the department did not comply with the order and that it failed to provide certain documents requested in particular the document entitled South African Army Inspector General's report involving period ...(unclear) at the South African Army College (in Pretoria), February to March 2001."
"After a lengthy meeting and despite everything reasonably possibly done by the Department of Defence to comply with the High Court order the 5 applicant is of the view that the department did not comply with the order and that it failed to provide certain documents requested in particular the document entitled South African Army Inspector General's report involving period ...(unclear) at the South African Army College (in Pretoria), February to March 2001."
18) "The applicant has indicated that he intents to refer the matter to the High Court for intervention."
19) "It is the DOD's submissions that it has provided the said document and therefore complied with the High Court order."
In spite of this, in spite of what it previously be contented by the state in this court the court gave a very reasonable and fair amount of time for The Accused to bring in a High Court application to this court today. In the absence of such prove from my learner colleague the state would submit that it is in a position to set down a trial date for any time later this year. The state would further submit that this honourable court has an independent traditional officer is not bound by advice given by the State Attorney. certainly the state is going to argue that it is ...(unclear) bound by what the State Attorney has advised because the state was not a party to that round table conference. The state is not intending to bring and application to the High Court because we maintain that as far as reasonably possibly and in all fairness we have complied with that order. I have also received documents from my learner colleague when they also request a ministry investigation which is the one ministry refer to this court. Now the state had already on the - let me just confirm that date. On the 8th of September, a month ago indicated to my learner colleacue that it is not in possession of such a ministry inquiry or investigation eport that it is not intending to use such a ministry investioation report in prosecuting this matter. That. The Accused . has advised :o submit a formal request at the normal 'channels of 'communication to the ministry of defence to obtain such report as this report is not one that is spec:if daily ordered the High Court to be submitted. The state is under no obligation to do so. The state fails to see why it should do the viork-Of the defence counsel. If this were mere absence without leave case and The Accused was contending that due to impossibility and ill health he was unable to be at court, would they seriously expect the state to arrange medical witnesses and obtain medical reports? No. If that is the documents that my learner colleague wishes to use then he should obtain them. It is not ordered by the High Court, the state does not even knowwhether such report in fact exists. What we do have is a letter from the office from the minister written by Colonel Matkwalisa (?) who is not at the minister's office anymore. He is currently the chief of staff at Army Law Enforcement Satellite Office Thaba Tshwane and on course since March this year. Which indicates that he hereby respond that he hasreceived the letter from Lieutenant Colonel Goodman Manyanya Phiri and that the matter is receiving attention. It doesn't indicate that an investigation or inquiry is going to be made and that a report is going to be submitted at a later stage. So that is mere ...(unclear) and an assumption that has been made and now the state has to comply with something that we don't even know whether it exists. The state would further content that The Accused is non avia'y (?) when he is coming to this to this court today that he does not have prove. In a letter that was faxed by my learner colleague yesterday The Accused indicate, he indicated that The Accused is and I quote: "Busy drafting instructions which will indicate the extend of non compliance of the DOD with a High Court order herein." Now The Accused has already contended that he wishes to go to the High Court cn, the 6t.' of Joly. He repeated this on the 12th of July and repeated this on the 13th of July after the court had made its ruling. He seems to not then have done anything about it. That ship has sailed. That avenue has passed. Now we must once again postpone this matter, which has been outstanding since March 2001. There is case law when an application is brought before a High Cc._ot. Every accused has the right to fair trail, which includes the right to have a tra'i started and concluded without unreasonable delay. This right does not exclude The Accused from applying to the court for a postponement of a case that an application can be brought to the High Court or the constituticoal court regating a constitutional aspect relating to .this .case.. .The Accused has indicated that he wishes to do that on the 6th of July already, failed to do so. In exercising the tra:: tional digression to adjourn a case the traditional officer must according to Jud:2e Vera, in state vs. Gerites (?) in 1966 South African Law Report volume 1 case of :he Western Cape at page 754 ...(unclear) bare two principals in mind an i I quote: 'The one is that is that it is in the interest of society and accordingly of the state that guilty men should be dourly convicted and not escape by reason of an oversight or mistake which can be remedy. The other no less valid is that an accused person deemed innocent is entitled once ...(unclear) to be triad with expedition.
In spite of this, in spite of what it previously be contented by the state in this court the court gave a very reasonable and fair amount of time for The Accused to bring in a High Court application to this court today. In the absence of such prove from my learner colleague the state would submit that it is in a position to set down a trial date for any time later this year. The state would further submit that this honourable court has an independent traditional officer is not bound by advice given by the State Attorney. certainly the state is going to argue that it is ...(unclear) bound by what the State Attorney has advised because the state was not a party to that round table conference. The state is not intending to bring and application to the High Court because we maintain that as far as reasonably possibly and in all fairness we have complied with that order. I have also received documents from my learner colleague when they also request a ministry investigation which is the one ministry refer to this court. Now the state had already on the - let me just confirm that date. On the 8th of September, a month ago indicated to my learner colleacue that it is not in possession of such a ministry inquiry or investigation eport that it is not intending to use such a ministry investioation report in prosecuting this matter. That. The Accused . has advised :o submit a formal request at the normal 'channels of 'communication to the ministry of defence to obtain such report as this report is not one that is spec:if daily ordered the High Court to be submitted. The state is under no obligation to do so. The state fails to see why it should do the viork-Of the defence counsel. If this were mere absence without leave case and The Accused was contending that due to impossibility and ill health he was unable to be at court, would they seriously expect the state to arrange medical witnesses and obtain medical reports? No. If that is the documents that my learner colleague wishes to use then he should obtain them. It is not ordered by the High Court, the state does not even knowwhether such report in fact exists. What we do have is a letter from the office from the minister written by Colonel Matkwalisa (?) who is not at the minister's office anymore. He is currently the chief of staff at Army Law Enforcement Satellite Office Thaba Tshwane and on course since March this year. Which indicates that he hereby respond that he hasreceived the letter from Lieutenant Colonel Goodman Manyanya Phiri and that the matter is receiving attention. It doesn't indicate that an investigation or inquiry is going to be made and that a report is going to be submitted at a later stage. So that is mere ...(unclear) and an assumption that has been made and now the state has to comply with something that we don't even know whether it exists. The state would further content that The Accused is non avia'y (?) when he is coming to this to this court today that he does not have prove. In a letter that was faxed by my learner colleague yesterday The Accused indicate, he indicated that The Accused is and I quote: "Busy drafting instructions which will indicate the extend of non compliance of the DOD with a High Court order herein." Now The Accused has already contended that he wishes to go to the High Court cn, the 6t.' of Joly. He repeated this on the 12th of July and repeated this on the 13th of July after the court had made its ruling. He seems to not then have done anything about it. That ship has sailed. That avenue has passed. Now we must once again postpone this matter, which has been outstanding since March 2001. There is case law when an application is brought before a High Cc._ot. Every accused has the right to fair trail, which includes the right to have a tra'i started and concluded without unreasonable delay. This right does not exclude The Accused from applying to the court for a postponement of a case that an application can be brought to the High Court or the constituticoal court regating a constitutional aspect relating to .this .case.. .The Accused has indicated that he wishes to do that on the 6th of July already, failed to do so. In exercising the tra:: tional digression to adjourn a case the traditional officer must according to Jud:2e Vera, in state vs. Gerites (?) in 1966 South African Law Report volume 1 case of :he Western Cape at page 754 ...(unclear) bare two principals in mind an i I quote: 'The one is that is that it is in the interest of society and accordingly of the state that guilty men should be dourly convicted and not escape by reason of an oversight or mistake which can be remedy. The other no less valid is that an accused person deemed innocent is entitled once ...(unclear) to be triad with expedition.
20) The state therefore would argue that to allow another postponement for the state to bring an application to the High Court or The Accused perhaps then once again to try and exercise his right to approach the High Court would be unreasonable, is not in the interest of fair and just administration of justice and should be disallowed. The state will content that the matter now be postponed to be set down for trial so that the trial still may be finalised within this year. As the court pleases.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Any reply?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, I'm instructed to ask a copy of that letter which she read, an earlier letter by ...(unclear) on the report of ...(unclear)?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Which was dated the 22nd of September, is that correct?
PROSECUTION COUNSEL Ms PAKENDORF: That is correct, Judge.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Okay, could you pass it over to the defence, please? Would you like to have a moment to consider it together with your c'ent?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah, okay we can stand down to consider it.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right, time now is 9:35. The tape be stopped, thank you Colonel Phiri, you may withdraw.
(Recording machine was switched off)
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: In the matter of the state vs. Phiri, t-e time now is 9:55. Colonel Simelane?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, sir as the court pleases. Jus: for myself Judge, just, are we on record because ...(intenienes)?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes, we are.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Because the other day - I 'addressed the turned up the matter was not on record, we had no recort:. Ss:m at least it t iit ...(unclear) somewhere a piece of paper. Judge, I've heart my learner friend. And where ...(unclear) for the short adjournment, a fair occasion to take instructions on this letter. Before replying I can only indicate immediately that the instructions are to place on record that the order of this letter General Wnono is bona vide ...(unclear) by my client and yes, the bases thereof is that Mr, General Wnono is not giving a true reflection of the events relating to that meeting that is referred to. Judge, I got a document in my hand, it is the only copy we have. This document geminates from Army Law Enforcement Satellite Office Thaba Tshwane. It is General Wnono brought this document to this meeting, according to my instructions dated 11 August 2004 it is from SO1 Legal advice and litigation Army Law Enforcement Satellite Office Thaba Tshwane to see ...(unclear) for the attention ...(unclear) personnel duplicates General S Wnono. The title is leading Lieutenant Phiri by the minister of defence and others. It reads:
1. "Instructions during the meeting at the officer of the State Attorney on 10th instant, meaning 10 September with regard to above mention matter refer to attach hereto a memorandum." It is a memorandum, Judge, it is a memorandum from Colonel White addressed to One-Mashoala-Subordiante Mr Stephen Oupa Mokalake (?), dated 28th February 2001.
2. "It is a avid davit by Lieutenant Colonel Laurens dated 11th August 2004 with regard to Junior Command and Staff Duties Assessment Board held on 30th January 2001." This paragraph is relevant from the point I'm making.
3. "The letter from the white student arouping could still not be found. An affidavit to that effect would be requested if the letter .s not found soon." It is the signature of the author of this document. Now my :nstructions is that, how can my learner friend make a submission of compliance when clearly the letter refer to, this document from Army Law Enforcement Satellite Office Thaba Tshwane, he letter from the white student grouping could still not be found. An avid davlt to that effect will be requested if the letter is not found soon. Neither do v, e have the letter according Colonel Phiri, neither does he have this letter, nor does he have an avid davit to that effect as indicated here, he doesn't have those documents and I could see my learner friend is waving something, I'm not sure what is that but the Colonel Phiri doesn't have the document as of now. The: point has been made. I now proceed to the issues of the law.as. raised. by my :earned friend. I take the issue Judge;thiS seria,„s misdirection to say the State Attorney is not partof the state, the, even paragraph 3 of This letter, cf this letter of ... (unclear) we have here is not one of the ... _unclear). This letter of 22nd September, paragraph 3. On behalf- of the DOD on behalf of the Department of Defence that is what the DOD stands for as I understand it, on behalf of the Department of Defence the meeting was attended by the State Attorneys representative, Ms Frieda Mogale, Brigadier, General Moswala (?), Brigadier General Wnono and One-Mashoala-Subordiante Mr Stephen Oupa Mokalake. Now those people represented the DOD according to this letter and part of the state ...(unclear) that is opposed to Colonel Phiri. So if the parties therefore agree as they did agree on those matters that they agreed upon and they deliberated in the manner they deliberated my submission therefore is that the State Attorney is part of that, of the state. And therefore the state is bound by that version; the state is bound by that version. And that diffusion opinions of the State Attorney as the leader of representative of the state binds the state. That is when the one authority in terms of the law and the relevant instruments that is above that terms of legal advise would be the chief state law advisor. And the matter may never be referred to the chief state law advisor but this view, the view of the State Attorney is binding to the parties, in so far as the parties in the parties of the state here is concerned. That is my submission. So with greatest respect I disagree with my learner friend when she says, you know the opinion of the State Attorney was maybe be regarded, disregard and officially that cannot be the position that vie can go along with because all the consequences financially and otherwise be incurred will be incurred in official capacities and not in a personal level. So officially therefore I submit with respect the state is bound to the legal views of the State Attorney as to how this matter may proceed. Judge I will try to assist the court now on the submission by my learner friend that as far back as July the Colonel Ph iri was saying he is going to the High Court. That should be looked with respect Judge, in perspective. This was in the absence of interventions, there were interventions that made The Accused or Colonel Phiri not to go to court then because of this meetings that were going to be set up in order to resolve this matter of compliance or non compliance. And hands this long postpcnements the pa ties should try and meet and .find. each. other so it would no: have served any purpose on the one hand to have gbhe to the High Court and on the other hand this meetings have to take place in order to try and resolve Ir-.S questlons 2001non compliance. I want to take this point further, so far as to now Colonel Phiri is concerned. The Judge, I submit here with respect that the only bases that- Colonel Phiri can go to the High Court in the absence of compliance is to go and demonstrate content say to say the other parties in content failing to comply with the High Court order. He has already gone to the High Court, the remedy has been provided, an order has been handed down by the High Court that certain things needed to be done by the state. The state hasn't done those things. And as the state attorney correctly advises is that if the state maintains as it was doing to say it is complied, the authority that can deal with the issue of compliance or otherwise have argued on this issue previously before this court to make the point that in fact a competent court to deal with the question of compliance or non compliance is the court that made the order to say ce7tain things have to be done. The court will have all the papers that was before it, it made the order. It is then that court that is competent to say in the event of a dispute as it is at the moment, to say there is compliance here. So Judge I submit therefore that the State Attorney is advising now to bring this matter to finality to say if you people, because she listen to all of us, things were pointed out and where this non compliance but now obviously the State Attorney is not a abettor to say the State Attorney, can make a decision to say okay, I have heard you, I have heard you, I have heard all this ramblings, you have complied. Now she has, part wise is given accordingly therefore to say if the DOD is still persist with the view that it has complied then it must convince the court that made the order, it must convince :re court that made the order that it has complied. That court will make relevant orders accordingly having heard the DOD on the issue. And the matter will ce resolved if the state has not complied obviously they will be found to have been in content and it is another issue. And so far as The Accused is concerned Ty Lord, as if now the state is in content, it has failed to comply with an order of leet to March, the order . to comply within seven days, this has not happened. And it is rec.:rettably stolid the proceedings, the proceedings in this matter was state, military count until this full compliance and this has not happened. And the a.:oused is not amused about it because obviously this, well this kind of case han.gingoierhis effecting his career and he has gone out of his way, he has goneoutof his way to ask the assistance of the Hiah Court to get the state t: provide documents. Today is the 8th of October the year of our Lord 2004, the Documents have not been found, they vanished. Accused has gone, his own expense, it was my instructions that he is going to apply to the secretary for defence for legal assistance in respect of the cost he has already in credit in getting this orders. And the submission is relevant to the extent that in the event and after the court has considers this matters on today and in the event The Accused or Colonel Phiri in polite language has had to go to the court again to say my Lord you have made an order it is held in contempt by the the Minister of Defence and his/her Department of Defence, Phiri will need legal assistance for that. So from the practical side of things also and given the position taken by the state that it has complied one would like to imagine that the state will go to the High Court to say we have complied. And it might save reduce my client cost to some extend but in either way he would need to apply for legal assistance and it is an aspect which, I respectfully ask this court to consider in that regard and you know if The Accused has to take those, that approach of going to the High Court now that after all this meetings that are recorded here, one in September 10, one 21 September, they failed to resolve the state has not complied. Judge in essence I have just said that gc ng to the High Court as my learner friend has indicated that the member indicated far ...(unclear) July that he is going to the High Court, he didn't do so that is for reasons for the meetings that are going to take place. Now we are speaking with hindsight to the benefit to the meetings that have taken place now where all the parties were involved, the meetings did not resolve the issue. i have instructions that the state has not complied and we have an opinion from the State Attorney, and advice as part of the DOD if that meeting to say .the way forward should be to go to the High Court, stage go to the High Court and bring this matter to an end. I submit my Lord, this advice is ... !'r-Icliear) and that this court should look at it favourably and deal with the matter on the bases that the state will seek to demonstrate to the relevant its compliance. And that if they succeed to do that then the even the stay would be discha-ged of this proceedings that this matter can then proceed that he, v,. he is ...(unclear)) holds failing to provide documents this proceedings are stii. stated '.vith respect, Judge they are still stayed in terms of that order. And lwo2d like to ...(unclear) argument in that regard but this court is bound in to-Ts of stay in this proceedings by the High Court to stay in this proceedings ..-,tit this compliance. This compliance hasn't happened, hasn't happened an therefore to say regardless, if I understood my learner friend submission correctly, that Judge, please fix the matter for trail? That it runs in the phase of the High Court orders if this honourable court wish to proceed along those lines to say come with me, I'm fixing this trial and lets go ahead. And this all-good argument on the finalisation of case, I don't find fold to my learner friend on that the authority is clear that you know if there is a case the machinery is set in motion. These cases must be finalised promptly. But with respect one can't have ...(unclear) the state can't do that. The state can from the ...(unclear) with the whole question of charges pursuing my client they want to charge my client, they don't have the evidence to support those charges, The Accused wants further information of the charges are the documents ...(unclear) those charges were supposed to be founded, the state can't provide those documents. The Accused is set to go to court so ... (unclear) Judge, the state can't have its cake and eat it. If it can't provide the documents it is a clear option to abandon this exercise of saying do you want to charge Colonel Phiri for ...(unclear) conflict at the South African Army College (in Pretoria). And to save unconvinced and cost, heavy cost which have brought us together here to sit and look at this. This are my submission Judge, I'm asking the court in its good judgement and ...(unclear) judgement to find the way forward which in our submission is that the state must demonstrate the High Court its compliance and failing thereto the proceedings in this court remains stayed and that in the event of a postponement and in compliance with a High Court order we have postpone the matter seeing deer until this matters are finalised. These are my submissions, my Lord.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Any reply?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, I'm instructed to ask a copy of that letter which she read, an earlier letter by ...(unclear) on the report of ...(unclear)?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Which was dated the 22nd of September, is that correct?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Okay, could you pass it over to the defence, please? Would you like to have a moment to consider it together with your c'ent?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah, okay we can stand down to consider it.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right, time now is 9:35. The tape be stopped, thank you Colonel Phiri, you may withdraw.
(Recording machine was switched off)
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: In the matter of the state vs. Phiri, t-e time now is 9:55. Colonel Simelane?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, sir as the court pleases. Jus: for myself Judge, just, are we on record because ...(intenienes)?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes, we are.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Because the other day - I 'addressed the turned up the matter was not on record, we had no recort:. Ss:m at least it t iit ...(unclear) somewhere a piece of paper. Judge, I've heart my learner friend. And where ...(unclear) for the short adjournment, a fair occasion to take instructions on this letter. Before replying I can only indicate immediately that the instructions are to place on record that the order of this letter General Wnono is bona vide ...(unclear) by my client and yes, the bases thereof is that Mr, General Wnono is not giving a true reflection of the events relating to that meeting that is referred to. Judge, I got a document in my hand, it is the only copy we have. This document geminates from Army Law Enforcement Satellite Office Thaba Tshwane. It is General Wnono brought this document to this meeting, according to my instructions dated 11 August 2004 it is from SO1 Legal advice and litigation Army Law Enforcement Satellite Office Thaba Tshwane to see ...(unclear) for the attention ...(unclear) personnel duplicates General S Wnono. The title is leading Lieutenant Phiri by the minister of defence and others. It reads:
1. "Instructions during the meeting at the officer of the State Attorney on 10th instant, meaning 10 September with regard to above mention matter refer to attach hereto a memorandum." It is a memorandum, Judge, it is a memorandum from Colonel White addressed to One-Mashoala-Subordiante Mr Stephen Oupa Mokalake (?), dated 28th February 2001.
2. "It is a avid davit by Lieutenant Colonel Laurens dated 11th August 2004 with regard to Junior Command and Staff Duties Assessment Board held on 30th January 2001." This paragraph is relevant from the point I'm making.
3. "The letter from the white student arouping could still not be found. An affidavit to that effect would be requested if the letter .s not found soon." It is the signature of the author of this document. Now my :nstructions is that, how can my learner friend make a submission of compliance when clearly the letter refer to, this document from Army Law Enforcement Satellite Office Thaba Tshwane, he letter from the white student grouping could still not be found. An avid davlt to that effect will be requested if the letter is not found soon. Neither do v, e have the letter according Colonel Phiri, neither does he have this letter, nor does he have an avid davit to that effect as indicated here, he doesn't have those documents and I could see my learner friend is waving something, I'm not sure what is that but the Colonel Phiri doesn't have the document as of now. The: point has been made. I now proceed to the issues of the law.as. raised. by my :earned friend. I take the issue Judge;thiS seria,„s misdirection to say the State Attorney is not partof the state, the, even paragraph 3 of This letter, cf this letter of ... (unclear) we have here is not one of the ... _unclear). This letter of 22nd September, paragraph 3. On behalf- of the DOD on behalf of the Department of Defence that is what the DOD stands for as I understand it, on behalf of the Department of Defence the meeting was attended by the State Attorneys representative, Ms Frieda Mogale, Brigadier, General Moswala (?), Brigadier General Wnono and One-Mashoala-Subordiante Mr Stephen Oupa Mokalake. Now those people represented the DOD according to this letter and part of the state ...(unclear) that is opposed to Colonel Phiri. So if the parties therefore agree as they did agree on those matters that they agreed upon and they deliberated in the manner they deliberated my submission therefore is that the State Attorney is part of that, of the state. And therefore the state is bound by that version; the state is bound by that version. And that diffusion opinions of the State Attorney as the leader of representative of the state binds the state. That is when the one authority in terms of the law and the relevant instruments that is above that terms of legal advise would be the chief state law advisor. And the matter may never be referred to the chief state law advisor but this view, the view of the State Attorney is binding to the parties, in so far as the parties in the parties of the state here is concerned. That is my submission. So with greatest respect I disagree with my learner friend when she says, you know the opinion of the State Attorney was maybe be regarded, disregard and officially that cannot be the position that vie can go along with because all the consequences financially and otherwise be incurred will be incurred in official capacities and not in a personal level. So officially therefore I submit with respect the state is bound to the legal views of the State Attorney as to how this matter may proceed. Judge I will try to assist the court now on the submission by my learner friend that as far back as July the Colonel Ph iri was saying he is going to the High Court. That should be looked with respect Judge, in perspective. This was in the absence of interventions, there were interventions that made The Accused or Colonel Phiri not to go to court then because of this meetings that were going to be set up in order to resolve this matter of compliance or non compliance. And hands this long postpcnements the pa ties should try and meet and .find. each. other so it would no: have served any purpose on the one hand to have gbhe to the High Court and on the other hand this meetings have to take place in order to try and resolve Ir-.S questlons 2001non compliance. I want to take this point further, so far as to now Colonel Phiri is concerned. The Judge, I submit here with respect that the only bases that- Colonel Phiri can go to the High Court in the absence of compliance is to go and demonstrate content say to say the other parties in content failing to comply with the High Court order. He has already gone to the High Court, the remedy has been provided, an order has been handed down by the High Court that certain things needed to be done by the state. The state hasn't done those things. And as the state attorney correctly advises is that if the state maintains as it was doing to say it is complied, the authority that can deal with the issue of compliance or otherwise have argued on this issue previously before this court to make the point that in fact a competent court to deal with the question of compliance or non compliance is the court that made the order to say ce7tain things have to be done. The court will have all the papers that was before it, it made the order. It is then that court that is competent to say in the event of a dispute as it is at the moment, to say there is compliance here. So Judge I submit therefore that the State Attorney is advising now to bring this matter to finality to say if you people, because she listen to all of us, things were pointed out and where this non compliance but now obviously the State Attorney is not a abettor to say the State Attorney, can make a decision to say okay, I have heard you, I have heard you, I have heard all this ramblings, you have complied. Now she has, part wise is given accordingly therefore to say if the DOD is still persist with the view that it has complied then it must convince the court that made the order, it must convince :re court that made the order that it has complied. That court will make relevant orders accordingly having heard the DOD on the issue. And the matter will ce resolved if the state has not complied obviously they will be found to have been in content and it is another issue. And so far as The Accused is concerned Ty Lord, as if now the state is in content, it has failed to comply with an order of leet to March, the order . to comply within seven days, this has not happened. And it is rec.:rettably stolid the proceedings, the proceedings in this matter was state, military count until this full compliance and this has not happened. And the a.:oused is not amused about it because obviously this, well this kind of case han.gingoierhis effecting his career and he has gone out of his way, he has goneoutof his way to ask the assistance of the Hiah Court to get the state t: provide documents. Today is the 8th of October the year of our Lord 2004, the Documents have not been found, they vanished. Accused has gone, his own expense, it was my instructions that he is going to apply to the secretary for defence for legal assistance in respect of the cost he has already in credit in getting this orders. And the submission is relevant to the extent that in the event and after the court has considers this matters on today and in the event The Accused or Colonel Phiri in polite language has had to go to the court again to say my Lord you have made an order it is held in contempt by the the Minister of Defence and his/her Department of Defence, Phiri will need legal assistance for that. So from the practical side of things also and given the position taken by the state that it has complied one would like to imagine that the state will go to the High Court to say we have complied. And it might save reduce my client cost to some extend but in either way he would need to apply for legal assistance and it is an aspect which, I respectfully ask this court to consider in that regard and you know if The Accused has to take those, that approach of going to the High Court now that after all this meetings that are recorded here, one in September 10, one 21 September, they failed to resolve the state has not complied. Judge in essence I have just said that gc ng to the High Court as my learner friend has indicated that the member indicated far ...(unclear) July that he is going to the High Court, he didn't do so that is for reasons for the meetings that are going to take place. Now we are speaking with hindsight to the benefit to the meetings that have taken place now where all the parties were involved, the meetings did not resolve the issue. i have instructions that the state has not complied and we have an opinion from the State Attorney, and advice as part of the DOD if that meeting to say .the way forward should be to go to the High Court, stage go to the High Court and bring this matter to an end. I submit my Lord, this advice is ... !'r-Icliear) and that this court should look at it favourably and deal with the matter on the bases that the state will seek to demonstrate to the relevant its compliance. And that if they succeed to do that then the even the stay would be discha-ged of this proceedings that this matter can then proceed that he, v,. he is ...(unclear)) holds failing to provide documents this proceedings are stii. stated '.vith respect, Judge they are still stayed in terms of that order. And lwo2d like to ...(unclear) argument in that regard but this court is bound in to-Ts of stay in this proceedings by the High Court to stay in this proceedings ..-,tit this compliance. This compliance hasn't happened, hasn't happened an therefore to say regardless, if I understood my learner friend submission correctly, that Judge, please fix the matter for trail? That it runs in the phase of the High Court orders if this honourable court wish to proceed along those lines to say come with me, I'm fixing this trial and lets go ahead. And this all-good argument on the finalisation of case, I don't find fold to my learner friend on that the authority is clear that you know if there is a case the machinery is set in motion. These cases must be finalised promptly. But with respect one can't have ...(unclear) the state can't do that. The state can from the ...(unclear) with the whole question of charges pursuing my client they want to charge my client, they don't have the evidence to support those charges, The Accused wants further information of the charges are the documents ...(unclear) those charges were supposed to be founded, the state can't provide those documents. The Accused is set to go to court so ... (unclear) Judge, the state can't have its cake and eat it. If it can't provide the documents it is a clear option to abandon this exercise of saying do you want to charge Colonel Phiri for ...(unclear) conflict at the South African Army College (in Pretoria). And to save unconvinced and cost, heavy cost which have brought us together here to sit and look at this. This are my submission Judge, I'm asking the court in its good judgement and ...(unclear) judgement to find the way forward which in our submission is that the state must demonstrate the High Court its compliance and failing thereto the proceedings in this court remains stayed and that in the event of a postponement and in compliance with a High Court order we have postpone the matter seeing deer until this matters are finalised. These are my submissions, my Lord.
21) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Whilst you have the floor, Colonel.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Thank you, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Please remind me.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The High Court order refers to, yd.: refer to it now in your address.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: -Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: In your argument of the seven dai,s within which the state had to comply with the instruction or the court order.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.--
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: What was the instruction by the court failing the seven day period, what should happen?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Well, it follows that the proceedings of a departmental court would be stayed until this compliance. It means basically we should have well if the court would remember the argument we have had previously on the postponement, the fixed date that is what has in a way kept this proceedings alive ...(unclear) to the High Court order because after that seven days and failing to comply this proceedings should have continued stayed without us appearing before this court until this compliance. And then the compliance would have been demonstrated to High Court with complied in the event of a dispute as to compliance.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Do you have a copy of the court order with you by change?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Thank you, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Please remind me.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The High Court order refers to, yd.: refer to it now in your address.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: -Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: In your argument of the seven dai,s within which the state had to comply with the instruction or the court order.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.--
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: What was the instruction by the court failing the seven day period, what should happen?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Well, it follows that the proceedings of a departmental court would be stayed until this compliance. It means basically we should have well if the court would remember the argument we have had previously on the postponement, the fixed date that is what has in a way kept this proceedings alive ...(unclear) to the High Court order because after that seven days and failing to comply this proceedings should have continued stayed without us appearing before this court until this compliance. And then the compliance would have been demonstrated to High Court with complied in the event of a dispute as to compliance.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Do you have a copy of the court order with you by change?
22) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, we did file it to the court here: I don't know whether this ...(unclear) there are now to many files I have in this case. So I don't know whether this one I have here will have it within. We have cot ...(intervenes).
23) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: ...(unclear).
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Okay. This is the, yeah, ...(unclear) order. Okay, the order as ... (unclear), yeah the order Judge, there is a draft cyder here, which has been finalized, ...(unclear) stamp here, 23'd. The order made in to-ms of previous 2, 3, 4 and 6 of the ...(unclear) motion. Order rhade in terms of that. 2, 2 says: "The (unclear) of motion that the hearing in the military court Judge, reference number , ...(unclear) Phiri, G.1M Phiri be state pending the orders paid for under 3 and 4."
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Okay. This is the, yeah, ...(unclear) order. Okay, the order as ... (unclear), yeah the order Judge, there is a draft cyder here, which has been finalized, ...(unclear) stamp here, 23'd. The order made in to-ms of previous 2, 3, 4 and 6 of the ...(unclear) motion. Order rhade in terms of that. 2, 2 says: "The (unclear) of motion that the hearing in the military court Judge, reference number , ...(unclear) Phiri, G.1M Phiri be state pending the orders paid for under 3 and 4."
24) Now 3 and 4 are orders declaring that the: Applicant is entitled to have access to documents and or information held by the first respondent, tlr a: is the rnister. Alternatively fifth responded in the applicants exercis cg or protect,ng his 30 right in a trail, pending the departmental court" Access to documents andre-information. Order 4, 4 says:
"That the fifth respondent or the ffth responder: then would be Major H.S. Pretoruis, alternatively fifth respondent be ordered -that is .a Information Officer - be ordered and directed to furnish apr. Licant with the following documents: Namely: South African Army Inspector General's report involving Phiri and others in the South African Army College (in Pretoria), February to March 2001 "
"The commanders investigation report has ordered by acting commandant of the SAM College, Mr Eduard Frans Drost to look into complains against Lieutenant Colonel Goodman Manyanya Phiri, March 2001." My instructions are Judge that that aspect has been complied with, the Commander's investigation report.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: It has been?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah, that has been complied with, I retried my earlier statement.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: That no compliance what so ever. That report was furnished. 4C: "The ...(unclear) intervention report, intervention at the South African College January, February 2001 by the British Military Advisors to SA National Defence Force." That is 4, and 6, and 6 finally, 6 would be: "Ordering that the first respondent pays the cost of this application."
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right. Could we just return to the documents referred to in paragraph 5, ... (unclear) report, you read of the OC's investigation and the B-mat intervention of the court, has that been supplied?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: No, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Are those the only three documents in contained in the order?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, and in paragraph 4, Judge where they refer to South Africa Army Inspector General's report then B. the Commanders investigation report which has since been furnished and the B-mat ...(unclear) invention which is not been furnished. Those come under 4. That ministerial investigations report we referring it under 3, in order decia7ing that applicant is entitled to have access to documents and to informatic held by the first respondent, by the minister. Alternatively.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I just wanted to confirm the content of the court order.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could you just on the face of the draft of the order that was finalised, the paragraph that refers to the seven day time scale... (intervenes)?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: To the seven days?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: How do that read?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge that paragraph does not appear in this draft order because this is just the confirmation of the draft order. It is, it says that there is a paragraph 2 of this order, which says: "It is further ordered that if the respondent wish to withhold and of the information or documentation sort that such be specified to the applicant and the respondent shall at the recommencement of the hearing prove special grounds why the material should not be furnished to the applicant." The, I seem not to find the seven days here in this papers furnished to me. Or within seven days, yeah, sorry Judge. Paragraph 4 that paragraph 4.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: It says: "The fifth respondent alternative", fifth respondent be ordered and directed to furnished the applicant with the following documents, namely they are named A, B, C." The Judge will have them: "Within seven days of the date of the court order. Within seven days. That compliance should have happened within seven days. Then five would say: "Granting the applicant such ...(unclear) relief th:s court deems fit." is not mentioned there in terms of the orders.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: But the specific order there is .unc.er 6 on course. First...(unclear) pay the cost. So nothing (unclear) served aver seven days, within seven days they must comply of the date of the court orde-
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Am I correct in saying that the cc _r: order in the format does not have a return date?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:it is a final order.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, yes it does not have a return date, Judge. Correct Mr Court Orderly. It is a final order Judge. It is a final order, there is somewhere that ... (unclear) okay, the what was this? Ohm. ...(unclear), the order is final, Judge. The order is final so the, it make sense therefore to say the state should then go to the court and say we have complied.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right, now what, this matter has been dwelt with previously by this court.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I would like to be open on one or two aspects in respect thereof that I found ... (unclear).
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Mm.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: And that is the fact that if the order as we have nowseen does not contain a return date and you agree that it is indeed a final order.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Mm.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: It would mean that the proceedings instigated by your client before the High Court has been finalised, the only aspect outstanding is compliance with the instruction but there are no further proceedings pending in the High Court, is that correct?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, yes, what we discussed in effect was discussed at the meeting, that is why I'm able to answer this without nc hesitation. .
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: We considered the order.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: At the last meeting. I was not on the one on the 10th; I was at the one of the 215t or so. The question as to how the order stands, what the orders says, the order clearly says that must happen. If that paragraph 2 of the order, if assuming to say they have complied, assn_.ming that that is the situation and we, as they say which is denied of course they come before you Judge and say look if complied but we for certain reasons we did not want to give in certain documents in terms of that order too. If Pn:ii was going to challenge that then he can challenge it at the High Couint: you see. Certain documents were withheld for X: .Y .reasons, I don't think they are making good reasons then the High Court would consider that. That should be the bases why he can go there, if they are saying to this court we have complied, we didn't give in certain documents for this reasons in terms of paragraph 2 of that order. But then he would have had to go to the High Court and say look its not in order, this exceptions they are taking are not proper, they must furnish those documents, there would be a reason. But now we are dealing with a final order, now again if the state now says we have complied then if the other side, the member says you haven't complied then the obligation is up on the state to go to the High Court and to have complied with the order and The Accused then would have to demonstrate the High Court. Because the High Court would then look at in what way have you complied, will say if the state go to the High Court and say we have complied be have provided this, we provided this, we provided this in terms of the order we be need ruling that you have complied.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Mm.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: This ...(unclear) look into the stakes and say look we have complied. Of course The Accused will have to go ...(unclear) to say why but the ruling would be made to say okay, this is complied, this is non¬compliance. So now I then, that is why then I agree with the State Attorney about that if the state maintain it has complied, ...(unclear) to the declarations of The Accused then the state can only get itself out of this by demonstrating the compliance to the High Court and get a ruling and that ru'Ing will open the flight gates of this matter. Then the state will be set aside, ruling as compliance then nobody can go anywhere unless The Accused take it to a certain court of appeal. Then it took open for this court to deal with the matter. Now that, now as I have already argued my Lord, Judge is that if The Accused has to go to the High Court at this point it can be ...(unclear) to say to the court the state has failed to complied with the order of March so and so. They could provide with seven days and in fact I've gave them more time acing to March even up to now they haven't complied.
"That the fifth respondent or the ffth responder: then would be Major H.S. Pretoruis, alternatively fifth respondent be ordered -that is .a Information Officer - be ordered and directed to furnish apr. Licant with the following documents: Namely: South African Army Inspector General's report involving Phiri and others in the South African Army College (in Pretoria), February to March 2001 "
"The commanders investigation report has ordered by acting commandant of the SAM College, Mr Eduard Frans Drost to look into complains against Lieutenant Colonel Goodman Manyanya Phiri, March 2001." My instructions are Judge that that aspect has been complied with, the Commander's investigation report.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: It has been?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah, that has been complied with, I retried my earlier statement.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: That no compliance what so ever. That report was furnished. 4C: "The ...(unclear) intervention report, intervention at the South African College January, February 2001 by the British Military Advisors to SA National Defence Force." That is 4, and 6, and 6 finally, 6 would be: "Ordering that the first respondent pays the cost of this application."
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right. Could we just return to the documents referred to in paragraph 5, ... (unclear) report, you read of the OC's investigation and the B-mat intervention of the court, has that been supplied?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: No, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Are those the only three documents in contained in the order?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, and in paragraph 4, Judge where they refer to South Africa Army Inspector General's report then B. the Commanders investigation report which has since been furnished and the B-mat ...(unclear) invention which is not been furnished. Those come under 4. That ministerial investigations report we referring it under 3, in order decia7ing that applicant is entitled to have access to documents and to informatic held by the first respondent, by the minister. Alternatively.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I just wanted to confirm the content of the court order.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could you just on the face of the draft of the order that was finalised, the paragraph that refers to the seven day time scale... (intervenes)?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: To the seven days?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: How do that read?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge that paragraph does not appear in this draft order because this is just the confirmation of the draft order. It is, it says that there is a paragraph 2 of this order, which says: "It is further ordered that if the respondent wish to withhold and of the information or documentation sort that such be specified to the applicant and the respondent shall at the recommencement of the hearing prove special grounds why the material should not be furnished to the applicant." The, I seem not to find the seven days here in this papers furnished to me. Or within seven days, yeah, sorry Judge. Paragraph 4 that paragraph 4.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: It says: "The fifth respondent alternative", fifth respondent be ordered and directed to furnished the applicant with the following documents, namely they are named A, B, C." The Judge will have them: "Within seven days of the date of the court order. Within seven days. That compliance should have happened within seven days. Then five would say: "Granting the applicant such ...(unclear) relief th:s court deems fit." is not mentioned there in terms of the orders.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: But the specific order there is .unc.er 6 on course. First...(unclear) pay the cost. So nothing (unclear) served aver seven days, within seven days they must comply of the date of the court orde-
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Am I correct in saying that the cc _r: order in the format does not have a return date?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:it is a final order.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, yes it does not have a return date, Judge. Correct Mr Court Orderly. It is a final order Judge. It is a final order, there is somewhere that ... (unclear) okay, the what was this? Ohm. ...(unclear), the order is final, Judge. The order is final so the, it make sense therefore to say the state should then go to the court and say we have complied.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right, now what, this matter has been dwelt with previously by this court.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I would like to be open on one or two aspects in respect thereof that I found ... (unclear).
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Mm.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: And that is the fact that if the order as we have nowseen does not contain a return date and you agree that it is indeed a final order.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Mm.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: It would mean that the proceedings instigated by your client before the High Court has been finalised, the only aspect outstanding is compliance with the instruction but there are no further proceedings pending in the High Court, is that correct?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, yes, what we discussed in effect was discussed at the meeting, that is why I'm able to answer this without nc hesitation. .
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: We considered the order.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: At the last meeting. I was not on the one on the 10th; I was at the one of the 215t or so. The question as to how the order stands, what the orders says, the order clearly says that must happen. If that paragraph 2 of the order, if assuming to say they have complied, assn_.ming that that is the situation and we, as they say which is denied of course they come before you Judge and say look if complied but we for certain reasons we did not want to give in certain documents in terms of that order too. If Pn:ii was going to challenge that then he can challenge it at the High Couint: you see. Certain documents were withheld for X: .Y .reasons, I don't think they are making good reasons then the High Court would consider that. That should be the bases why he can go there, if they are saying to this court we have complied, we didn't give in certain documents for this reasons in terms of paragraph 2 of that order. But then he would have had to go to the High Court and say look its not in order, this exceptions they are taking are not proper, they must furnish those documents, there would be a reason. But now we are dealing with a final order, now again if the state now says we have complied then if the other side, the member says you haven't complied then the obligation is up on the state to go to the High Court and to have complied with the order and The Accused then would have to demonstrate the High Court. Because the High Court would then look at in what way have you complied, will say if the state go to the High Court and say we have complied be have provided this, we provided this, we provided this in terms of the order we be need ruling that you have complied.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Mm.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: This ...(unclear) look into the stakes and say look we have complied. Of course The Accused will have to go ...(unclear) to say why but the ruling would be made to say okay, this is complied, this is non¬compliance. So now I then, that is why then I agree with the State Attorney about that if the state maintain it has complied, ...(unclear) to the declarations of The Accused then the state can only get itself out of this by demonstrating the compliance to the High Court and get a ruling and that ru'Ing will open the flight gates of this matter. Then the state will be set aside, ruling as compliance then nobody can go anywhere unless The Accused take it to a certain court of appeal. Then it took open for this court to deal with the matter. Now that, now as I have already argued my Lord, Judge is that if The Accused has to go to the High Court at this point it can be ...(unclear) to say to the court the state has failed to complied with the order of March so and so. They could provide with seven days and in fact I've gave them more time acing to March even up to now they haven't complied.
25) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right. May I, if we then agree that the order is final,
26) 30 there are no proceedings currently in process before the High Court we reeclto re-visit the wording of the order that, in paragraph 2 says that if the respondent wish to withhold any of the information of documentation. sort that such be specified to the applicant and the respondent being the state in this instance shall at a recommencement of the hearing provide special around why it shouldnot be furnished. Now the point that I would like to hear you on, is...(intervenes).
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: If the order was finalised, the High Court has now concluded its work in respect of the application brought by your client what does the learner Judge refer to intent to mean recommencement of the hearing, is that then this court?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: If the order was finalised, the High Court has now concluded its work in respect of the application brought by your client what does the learner Judge refer to intent to mean recommencement of the hearing, is that then this court?
27) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As this letter, Judge would show, this by ...(unclear) September, the paragraph 7, that was an open issue that meeting, in fact it was agreed at that meeting before I read this. It was agreed at the meeting that the matter would be referred to counsel. To advice on that, it might have just occurred subsequent to the meeting that instead it would serve no purpose in stead of briefing counsel for an opinion, the State Attorney advices that if you maintain if complied go to the High Court and get yourself after them, is to make need to go about the executors way but I remember at the meeting it was agreed that, the, an opinion would be sort. The meeting ended in anticipation of further meetings that there would be an opinion sort in this, on the issue that vie would consider the advice ...(unclear), it would appear that approach was abandoned after the meeting, after we ...(unclear). Paragraph 7 of this letter says: "The other issue that this two parties disagreed upon is the interpretation of paragraph 2 of the High Court order. The issue is whether or not the wedding, I quote: "Recommencement of the hearing" refer to the departmental court or the High Court." It is our interpretation that it refers to the departmental court but that matter was to refer to counsel for an opinion. Yeah, the point is that the, if the order, ths recommencements is in the contests of a situation where they say we have complied but we have not furnished the member with cer'.a.n documents for this reasons. Now that presupposes that if they say they have complied and it is now my interpretation ...(unclear) before this court and they say v,e have complied but we have not furnished the member with certain documents for this special reasons in terms of that paragraph of the orde-, recommencements would be before this court, because it would be on the bases of compliance but for the two, for certain documents that have not been furnished, now this is not the situation here. The state is not claiming to furnish the member with certain documents for certain reasons. ...(Intervenes).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Not furnishing him for certain reasons.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: For certain reason.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: It is not that situation so it cannot be an issue here, in fact the proper interpretation of the status of this court is that the matter is stayed and we would not have been before this court had the court went along with our earlier argument and interpretation of the stay that it means a postponement must be ...(unclear). If we postponed ...(unclear) from the word go vie would not be here today because the ....(intervenes).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Not furnishing him for certain reasons.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: For certain reason.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: It is not that situation so it cannot be an issue here, in fact the proper interpretation of the status of this court is that the matter is stayed and we would not have been before this court had the court went along with our earlier argument and interpretation of the stay that it means a postponement must be ...(unclear). If we postponed ...(unclear) from the word go vie would not be here today because the ....(intervenes).
28) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: That is neither here nor there.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The point here is that you say that the paragraph 2 is not really applicable hands this court should not reconvene for it is not a question of the court not wanting or the state not wanting to supply the documents.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: It is something else?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Something is, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: And that else is?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: It is something else, it is not, tha: else is they are not supplying with the documents.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: What was the reason forwarded by the sate?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Well they haven't complied, they claimed they have complied, I've demonstrated that the haven't complied. They haven't complied so it is not this question that they have complied because if this thing happened without any need to come here it would have been clear like the State Attorney is saying that if the meeting ended on a disagreement cr compliance or non¬compliance then the party that says it has complied, that party must satisfied the court, the High Court, the court that made the order that it has complied.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The point here is that you say that the paragraph 2 is not really applicable hands this court should not reconvene for it is not a question of the court not wanting or the state not wanting to supply the documents.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: It is something else?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Something is, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: And that else is?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: It is something else, it is not, tha: else is they are not supplying with the documents.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: What was the reason forwarded by the sate?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Well they haven't complied, they claimed they have complied, I've demonstrated that the haven't complied. They haven't complied so it is not this question that they have complied because if this thing happened without any need to come here it would have been clear like the State Attorney is saying that if the meeting ended on a disagreement cr compliance or non¬compliance then the party that says it has complied, that party must satisfied the court, the High Court, the court that made the order that it has complied.
29) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: So if I understand you correct" the question is according to the defence ...(intervenes):.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge:
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: That the state complied in part an on the outstanding documents have not yet complied?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But I have not yet heard from the defence what reason has been forwarded by the state, if any, why such has not been complied with? Have you received any such reason either in terms of paragraph2 of the High Court order or any other reason? That is what I would like to know?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge:
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: That the state complied in part an on the outstanding documents have not yet complied?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But I have not yet heard from the defence what reason has been forwarded by the state, if any, why such has not been complied with? Have you received any such reason either in terms of paragraph2 of the High Court order or any other reason? That is what I would like to know?
30) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, the, for example the ...(unclear) Inspector General's report, if I remember correctly the state wanted to see the debriefing without the report itself should service, in other words they want to put their own interpretation, that they don't want to submit the army's Inspector Generals report because they debriefing which they are providing should service, in other words ...(intervenes).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right,. May I just interrupt you there?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right,. May I just interrupt you there?
31) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, this ...(unclear) the decision brief that is the word use as the Colonel Phiri is correcting me there, that in fact they issued this word decision brief, they want to say the decision brief, if it stands in stead we must, he must accept the decision brief in stead of the army general's report which is stated in so many ways in the order that the army is not a general's report.. They produced what is called a decision brief, please accept the decision brief. This is just as good, it has got everything that you may need.
32) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right, so what you are saying is. They say according to what you have understood from them ...(intervenes).
33) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: That the IG, the Army IG-report itself will not be supplied to them, take this document in stead?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: That the IG, the Army IG-report itself will not be supplied to them, take this document in stead?
34) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes. They say take this in stead because we don't have the army Inspector General report, apparently they ale not able to locate it like this. They, it is a question, we can't find the army Inspector General's report now, just take the decision brief and run away. So we want to ...(intervenes).
35) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: So. All right. Then the other document, is the British Military Advisory and Training Team’s intervention report, what reasons is been forwarded to you in respect of that document not being provided?
36) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: may I take instructions?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Sure.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, in that document, in that avd davit by Laurens, Laurens, yes, avid davit by Laurens is the answer to the udgers query- there. 35 I'm just finding the avid davit. Yeah, okay. Judge, let me read into the record the affidavit by Laurens, it is a short avid davit? may be it will answer this question: Affidavit.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Sure.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, in that document, in that avd davit by Laurens, Laurens, yes, avid davit by Laurens is the answer to the udgers query- there. 35 I'm just finding the avid davit. Yeah, okay. Judge, let me read into the record the affidavit by Laurens, it is a short avid davit? may be it will answer this question: Affidavit.
37) "I, 77872315PE, Lieutenant Colonel Elizabeth Deville Laurens with ID number: 450202 0002 086, hereby declare under oath as 5 follows: "I have been appointed at the staff officers class 1 training at the Southern Army College since 1995 and I still hold this post."
38) "On 30th January 2001 I was the secretary for the assessment board which was confined for the then Junior Commander and Staff duties course. Number Lieutenant Colonel G.M. Phiri a member of the inventory call was one of the candidates who appeared before the board. Each candidate had the opportunity to speak to the board and all of them had the opportunity to aive their comments in writing on the appendences to the main document which contain the general meeting minutes of the board.. The recommendations of the board, the signatures of the members of the board and the written comments of each candidate were contained in the separate appendices allocated to each candidate who appeared before the board. In order to keep to the general minutes of the board as short as possible candidates were afforded the opportunity to Wr::e their commends on the appendices allocated to each of them. Because of this opportunity I the secretary did not keep (and was never recommended to keep) minutes of what each candidate said to the board. The minutes (the main document) the minutes are forwarded to all addressee and within them only the relevant appendices to the "need to know" addressee."
39) I repeat that sentence, as it is relevant here: "The minutes the main document) the minutes are forwarded to all the addressee and within them only the relevant appendices to the "need to know" addressee".
40) "It should also be remembered that the candida:es are not authorised to sign the minutes for correctness. But they are entitled to make written commends on read and sign on the appendices fbr each of them. These arrangement insure more privacy for :he candidates."
"I declare that I did not minute Lieuten-an: Phiri comments to the board and that he was given the opportunity to written comments on the appendices allocated to him during the proceedings to this assessment board."
"I declare that I did not minute Lieuten-an: Phiri comments to the board and that he was given the opportunity to written comments on the appendices allocated to him during the proceedings to this assessment board."
41) This is all I declare, signed Ms E.D.V. Laurens."
42) Now the minutes as it is states there are forwarded to all the addressee and apparently since it wasn't the address, it was not been given to him. But what the oversight for them here is that this High Court order.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But my question was subsequent to the High Court order being granted.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: You claimed that the document had not been providedto you?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But my question was subsequent to the High Court order being granted.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: You claimed that the document had not been providedto you?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
43) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Now since the High Court order was made, whatreasons were forwarded to the defence for non-compliance with that ...(intervenes)?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, this is the decision because this letter was brought by General Wnono to the meeting to say this is the response we have and in so far as this issue now the court is seized with those documents since it is not an addressee they go to those addressees in terms of this avid davit by Laurens then it, we should be satisfied with this, so in other words it is not provided because obviously he was not, Colonel Phiri was not one of the addressees and it couldn't go to him but what the representatives of the DOD there was supposed to have done, was to point out to Laurens row that we are now dealing with a different situation here, were there has been a court order, we want to comply with a High Court order and please, now even if he wasn't an addressee at the time, lets have this document.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, this is the decision because this letter was brought by General Wnono to the meeting to say this is the response we have and in so far as this issue now the court is seized with those documents since it is not an addressee they go to those addressees in terms of this avid davit by Laurens then it, we should be satisfied with this, so in other words it is not provided because obviously he was not, Colonel Phiri was not one of the addressees and it couldn't go to him but what the representatives of the DOD there was supposed to have done, was to point out to Laurens row that we are now dealing with a different situation here, were there has been a court order, we want to comply with a High Court order and please, now even if he wasn't an addressee at the time, lets have this document.
44) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you, Colonel Sirnolane. Ma or you have heard what the Colonel has said before, I have specific questions. . Are there any general remarks that you wish to make with respect of the matter, of the court order itself and the return dates or not and the seven day period or not or paragraph 2 in the order stating the recommencement of the hearing and proving special grounds why documents would not be provided?
PROSECUTION COUNSEL Ms PAKENDORF: Yes, Judge. Obviously the state is in a dispute whether the seven day period with no return date automatically puts the burden on the state to now ... (unclear) that is has complied. The seven day period expired, the state handed over on the 8th of April 2004 and if we do not take weekends in account a, the following document by hand General N.G. Du Preez which I will read. That is: "Army Law Enforcement Satellite Office Thaba Tshwane / R /10650 for attention of Brigadier and General S.P Wnono. Entitled Lieutenant G.M. Phiri vs. Minister of Defence."
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you, Colonel Sirnolane. Ma or you have heard what the Colonel has said before, I have specific questions. . Are there any general remarks that you wish to make with respect of the matter, of the court order itself and the return dates or not and the seven day period or not or paragraph 2 in the order stating the recommencement of the hearing and proving special grounds why documents would not be provided?
1. "...(unclear) 1/R/10650 dated 5 April 2004 ...(unclear) to attach here to find copies of:
South African Army IG-report. Chief of The Army/IG Army/R/506/2/6 dated 25 June 2001 in closure 1. Certificate of investigation 05/2001 South African Army College (in Pretoria) dated 6 March 2001 in enclosure 2.
South African Army IG-report. Chief of The Army/IG Army/R/506/2/6 dated 25 June 2001 in closure 1. Certificate of investigation 05/2001 South African Army College (in Pretoria) dated 6 March 2001 in enclosure 2.
45) 2."No B-mat intervention report could be found, the only corresponding documentation are the period January, February 2001 with regard to any B-mat involvement is the minutes of the GCSD assessment board meeting dated 30 January 2001 of which a copy, which minutes a copy is attached in enclosure 3."
3."For your perusal and possible further instructions. It was then given to General VVnono; he signed receipt thereof as well as it was only written here Colonel on 13th April 2004. The state therefore as far as reasonably unfairly expected complied within the seven-day period. Further that a very common principle of he who ...(unclear) must prove. Now we have not averred, we have complied. The averment from my learner colleague is that we have not complied. They are then therefore to approach the High Court. Because accordino to my learner colleague we are in contempt for many months now, although this office of the prosecutor only received an application towards of paragraph 2 on the 9th of July 2004, which had answered, one is not able to comply with because there is; no evidence that such a document exists.
3."For your perusal and possible further instructions. It was then given to General VVnono; he signed receipt thereof as well as it was only written here Colonel on 13th April 2004. The state therefore as far as reasonably unfairly expected complied within the seven-day period. Further that a very common principle of he who ...(unclear) must prove. Now we have not averred, we have complied. The averment from my learner colleague is that we have not complied. They are then therefore to approach the High Court. Because accordino to my learner colleague we are in contempt for many months now, although this office of the prosecutor only received an application towards of paragraph 2 on the 9th of July 2004, which had answered, one is not able to comply with because there is; no evidence that such a document exists.
46) I certainly cannot answer on behalf of the first respondent. So the state's argument is that not only have complied, the court order only goes so far as to say we have to comply within a certain period which we have done and that if the contention is there is content and non-compliance that must come from my learner colleague who had held this court proceedings hostage as of the 6th of July with threats that it is going to go to the High Court to alleged contempt or to say that we have not complied. And now the argument is that well, we were having round table conferences to mediate this, that does not mean that the initial instruction, it can, an application to the High Court can be withdraw at any stage should the round table meetincs be unsuccessful and those are just what they are, round table meetings. No person of the function line of the prosecution Section was involved during any of these meetings. The state will maintain that it is not bound by advice and opinions handed down by the State Attorney. Certainly this honourable court as an independent traditional authority is not bound by that.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right, let just go back one or two steps. Your letter of the 8th of April.
PROSECUTION COUNSEL Ms PAKENDORF: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Referred to, makes mention of certain documents attached.
PROSECUTION COUNSEL Ms PAKENDORF: Okay.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Just keep it with you.
PROSECUTION COUNSEL Ms PAKENDORF: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The IG-report that is apparently contained as (unclear) thereto.
PROSECUTION COUNSEL Ms PAKENDORF: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The defence claims they never received it, in stead haven't been, the decision brief was supplied to them, what is your comment on that?
PROSECUTION COUNSEL Ms PAKENDORF: Judge they indeed received it b.,' hand of i Msiza attorneys they indicated ...(intervenes).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: What did they receive?
PROSECUTION COUNSEL Ms PAKENDORF: This complete document. The IG--eport, Chief army, the one I have indicated.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: And not the decision brief?
PROSECUTION COUNSEL Ms PAKENDORF: Which we have furnished later, we dIc ...(intervenes)
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right.
PROSECUTION COUNSEL Ms PAKENDORF: Okay, Judge ...(intervenes).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I don't want to become involved; I just want to clarify what allegations are on the table here. The defence claims it was not, he claims it was that sufficient for my purpose at this point in time. Secondly you do agree or rather the documents state it that the B-mat intervention report itself does not exists.
PROSECUTION COUNSEL Ms PAKENDORF: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But being that assessment board minutes does exists and that was indeed supplied?
PROSECUTION COUNSEL Ms PAKENDORF: Yes, yes, sir.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right, let just go back one or two steps. Your letter of the 8th of April.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Referred to, makes mention of certain documents attached.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Just keep it with you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The IG-report that is apparently contained as (unclear) thereto.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The defence claims they never received it, in stead haven't been, the decision brief was supplied to them, what is your comment on that?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: What did they receive?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: And not the decision brief?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I don't want to become involved; I just want to clarify what allegations are on the table here. The defence claims it was not, he claims it was that sufficient for my purpose at this point in time. Secondly you do agree or rather the documents state it that the B-mat intervention report itself does not exists.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But being that assessment board minutes does exists and that was indeed supplied?
47) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Okay. Anything last?
48) PROSECUTION COUNSEL Ms PAKENDORF: I just would add that it would appear that my learner colleague on behalf his client was not happy with the content of the documents handed over. But the state has got numerous avid davits to say that that is what there is. That which we have not handed over simply does not exists.
49) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right. We will we are not going to go into the existence" or not existence ...(intervenes).
PROSECUTION COUNSEL Ms PAKENDORF: MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:Colonel Simelane? Thank you, Judge. For purposes of my questions in this point in time.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, we of course my instructions are that other document in that letter which says ...(unclear) that letter from General Du Preez are attached, something there that was in fact not furnished according to my instructions.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: There were three documents. The 10-report.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Which you said you did not, they did not want to supply the IG-report they wanted to supply a decision brief?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, the IG-report is the one they say they can't find it now and they ... (intervenes).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:Right, but you already explained that to the court. Yes. And then in respect of the, was it conveyed to you that the British Military Advisors and Training Team’s intervention report does not exists?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, we of course my instructions are that other document in that letter which says ...(unclear) that letter from General Du Preez are attached, something there that was in fact not furnished according to my instructions.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: There were three documents. The 10-report.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Which you said you did not, they did not want to supply the IG-report they wanted to supply a decision brief?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, the IG-report is the one they say they can't find it now and they ... (intervenes).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:Right, but you already explained that to the court. Yes. And then in respect of the, was it conveyed to you that the British Military Advisors and Training Team’s intervention report does not exists?
50) BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah, Colonel Phiri here, says the minutes, which they are referring to. It is only the minutes, which they could give but they can't give. Yes, the generic were not given.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Were not given?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge. They had only give signatures.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right but what was required per the court order was not the minutes of the board, B-mat assessment board but the B-mat intervention report. Now the prosecutor claims that they could not find such a document, was it conveyed to the defence that that document does not exist, that this is the document descript in the court order?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, my instructions are that Judge, they did say that they can't find the report but they can provide minutes in ...(unclear) of that report.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But even those minutes were not provided in full?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Even those minutes have not been provided. (Someone whispering: but they did). Yes, because the, what is there it is said to be truncated to something with signatures but there is not contents, there are no minutes of the deliberations. Just something showing signatures, something truncated.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Were not given?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge. They had only give signatures.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right but what was required per the court order was not the minutes of the board, B-mat assessment board but the B-mat intervention report. Now the prosecutor claims that they could not find such a document, was it conveyed to the defence that that document does not exist, that this is the document descript in the court order?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, my instructions are that Judge, they did say that they can't find the report but they can provide minutes in ...(unclear) of that report.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But even those minutes were not provided in full?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Even those minutes have not been provided. (Someone whispering: but they did). Yes, because the, what is there it is said to be truncated to something with signatures but there is not contents, there are no minutes of the deliberations. Just something showing signatures, something truncated.
51) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Now would the defence be satisfied with the full minutesof the assessment board in lieu of the B-mat intervention report?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, my instructions are that full minutes would suffice because they would then record what transpired.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right ...(intervenes).
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge just in passing here with your permission it is that he who adverse applies equally to the state, if the state adverse, if the state adverse that we are complied then precisely what the State Attorney is saying inform the High Court that we have complied so that the mend, we can bring. closure to the matter. If the state adverse it has complied, let it say so to the High Court, say my Lord we have. complied, and when it say so, Judge how this matter will come to an.end. When it.says so they will put to the High Court the documents they supplied. If they have made and avid davit and say we have complied see Annexure so and so, this is so, item so of the order, Annexure so and so is so of the order: - Obviously- those papers would be served on Colonel Phiri and everybody, the court, the member will see we have supplied this. In other words we are saying if the state says it has complied, let the state put the averment to the High Court and the way of putting that averment to the High Court would be to throw an avid davit to say the court ordered on such a day that we comply, we furnish The Accused with this documents, mention the documents, the documents are Annexure, the documents which is refer to in the order. The document refer to in the order is Annexure and the documents, and this is our of compliance, here are the documents Judges or Judge, this is our compliance. And the other side which is Colonel Phiri would have a copy of that submission and he will be able to say either way and the matter will come to an end and with respect Judge, this sessions of compliance and non-compliance will come to an end. And a ruling ...(intervenes).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: There is nothing, the position is quite clear at this point in time.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I understand what was apparently furnished or apparently not furnished. I understand the differentiations.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Madam Prosecutor, the letter of General Du Preez.
PROSECUTION COUNSEL Ms PAKENDORF: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: You wouldn't happen to have a copy of it with you withall the Annexure documents currently?
n'OSECUTOR: I only have a copy of the letter not of the enclosures which he refers to, I only have a copy of the letter from Masiza attorneys where refers to the enclosures as well to say they received for example the minutes of ...(unclear) the assessment board meeting. I don't have all the closures in like a path unfortunately. I just have a copy of the letter.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: No, ...(unclear) but it is not a problem. Right, the court
shall close at this point in time to consider its position.
'CASSETTE 2 STARTS] .
The time now is 11 o'clock, thank you Mr Court Orderly. Thank you Colonel Phiri, you may withdraw. The tape is to be stopped.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, my instructions are that full minutes would suffice because they would then record what transpired.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right ...(intervenes).
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge just in passing here with your permission it is that he who adverse applies equally to the state, if the state adverse, if the state adverse that we are complied then precisely what the State Attorney is saying inform the High Court that we have complied so that the mend, we can bring. closure to the matter. If the state adverse it has complied, let it say so to the High Court, say my Lord we have. complied, and when it say so, Judge how this matter will come to an.end. When it.says so they will put to the High Court the documents they supplied. If they have made and avid davit and say we have complied see Annexure so and so, this is so, item so of the order, Annexure so and so is so of the order: - Obviously- those papers would be served on Colonel Phiri and everybody, the court, the member will see we have supplied this. In other words we are saying if the state says it has complied, let the state put the averment to the High Court and the way of putting that averment to the High Court would be to throw an avid davit to say the court ordered on such a day that we comply, we furnish The Accused with this documents, mention the documents, the documents are Annexure, the documents which is refer to in the order. The document refer to in the order is Annexure and the documents, and this is our of compliance, here are the documents Judges or Judge, this is our compliance. And the other side which is Colonel Phiri would have a copy of that submission and he will be able to say either way and the matter will come to an end and with respect Judge, this sessions of compliance and non-compliance will come to an end. And a ruling ...(intervenes).
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: There is nothing, the position is quite clear at this point in time.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I understand what was apparently furnished or apparently not furnished. I understand the differentiations.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Madam Prosecutor, the letter of General Du Preez.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: You wouldn't happen to have a copy of it with you withall the Annexure documents currently?
n'OSECUTOR: I only have a copy of the letter not of the enclosures which he refers to, I only have a copy of the letter from Masiza attorneys where refers to the enclosures as well to say they received for example the minutes of ...(unclear) the assessment board meeting. I don't have all the closures in like a path unfortunately. I just have a copy of the letter.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: No, ...(unclear) but it is not a problem. Right, the court
shall close at this point in time to consider its position.
'CASSETTE 2 STARTS] .
The time now is 11 o'clock, thank you Mr Court Orderly. Thank you Colonel Phiri, you may withdraw. The tape is to be stopped.
52) (Court is closing to consider its position)
((Court re-opens))
((Court re-opens))
53) FINDING
54) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The matter of the State vs. Phiri the time now is 11:15. The status of this court at this point in time is determent by the order made by Judge Claassen. And his reference to the recommencement of the hearing ...(unclear) refer to in paragraph 2 is now my opinion is now indeed to this court. That is the only logical conclusion that the court can come to. And also for other reasons then that was forwarded by this court of before this court up to now such as the fact that the previous consideration made by this court per ...(unclear) Colonel Piet Venter referred to the relevance of the document at trial where as what was dwelt with by the Supreme Court, by the High Court rather, was whether the applicant was entitled to the document in preparation for his trial. Linked or related topics but different nonetheless. The status of the court however is not determined by paragraph 2. That is determined by paragraph 1, which orders that the ...(unclear) 2, 3, 4 and 6 of the notes of the motion be made orders of the court which Colonel Simelane quite correctly to my mind??? ...(unclear). That in first instance this matter, that is this departmental court is stayed, the hearing in this court is stayed pending the order prayed for under paragraph 3 and 4 or prayer 3 and 4.
55) And they are quite clearly, 3 and 4, prayer 3 and 4 has the furnishing of the documents set out as a pre-condition before the staying of these proceedings come to an end. That the court distinguish...between recommencement of this hearing for the purpose of hearing reasons why the state do not wanted to provide certain documents. As suppose to a situation whether it has been provided or not provided clearly indicates that the Judge have in mind two different scenarios. This court therefore does may not or may not commend even if it is to deal with the issue whether the documents can or cannot be forwarded. The ambit within which this court may reconvene is limited to an instance where the prosecution wants to indicate why it .does not want-to- provide the required documents. And it is clear from. the reasons supplied by the state and that the allegations by the defence that this is not an issue .before the court at this point in time. The question is whether those documents are available and can be provided or not.......
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| Jacob Zuma (Mr) and some unnamable character |
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