TUCHTEN/SOUTHWOOD FOR LINDIWE SISULU CHALLENGED BY PHIRI

"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

Some time towards the tail end of 2010 a Judge-Tuchten-presided-upon sitting of the High Court full bench occurred in the matter of Blogger VERSUS South Africa’s Minister of Defence and Military Veterans’ Affairs (Honourable Lindiwe Nonceba Sisulu).




When this occurred, Blogger had some weeks or a month earlier apprised South Africa’s current SANDF Commander in Chief President Jacob Gedleyihlekiza Zuma (as well as a Defence Commission headed by Judge Lebotsang Bosielo [who BOTH subsequently wrote back to Phiri in acknowledgement]) of the victimization Phiri/Blogger/I am suffering at the hands of Honourable Lindiwe Sisulu.  




The President's office wrote back by means of a letter already quoted on this blog, to say  the President of the Republic of South Africa and Arch-Protector of South Africa's Constitution (Zuma) is already seized with the matter of the Phiri victimization through 10-year-old vexatious charges.




Now, because of this response from the President’s Office, I as Phiri deemed: it would have been both unnecessary and even disrespectful to challenge Judge Tuchten even where Tuchten and his full bench did catastrophically err in their judgement against Phiri.  I had originally had it in mind to approach the President of  the North Gauteng High Court for a formal complaint against the manner in which the full bench expressed itself during the deliberations preceding what, in my view, ended up being  a stroke of catastrophically faulty judgment to the undue advantage of the Minister.

The Minister, Honourable Lindiwe Nonceba Sisulu (at least for that period) also did likewise (to give precedence to the opinion/intention of the President (to give at convenient time full attention to the Phiri matter) by not resuming any military-court trials against Phiri.


In essence, it was, between Goodman Manyanya Phiri and Lindiwe Nonceba Sisulu “an unsigned ceasefire/truce in deference to President Zuma”.

To Phiri/my surprise, two weeks or three ago, the Lindiwe-Sisulu-commanded military court DID resume; and now I am seeking any good attorney anywhere in South Africa and abroad (even in Britain where the history of South Africa seems to be starting in order to glorify South Africa's Demigod Nelson Mandela) who can quid pro quo challenge the Tuchten judgement, seeing that one party in the “mutual respect for President Zuma” has already broken that respect/deference to the President.

For now, I, over and above stuff I long blogged about, am highlighting here some more areas over which I am unhappy with the Tuchten judgment.

In the regard of reading the Tuchten Judgement, Blogger’s comments will be found coloured/highlighted whereas the Tuchten judgement is colourless.  The complete reading of the Tuchten judgement can be found here)

Tuchten J:

1 This appeal arose from a dispute about access to documents in the context of proceedings in a military court, similar to the access to the docket to which an accused in a criminal case is entitled1 and analogous to a discovery dispute in a civil case(my plea is to have access to the report compiled prior to my charges, during the compilation of which the state alleges I had been found to be criminally involved=Kleynhans statement=with the racial conflict ==quote the disharmony per page number== I am not looking for dockets in the possession of some police officers nor am I requesting to have state witnesses in private meetings with me where I could possibly intimidate them as is the case quoted by Tuchten.  In fact I contend that Tuchten’s comparison of my plea to that of Shabalala and Others V Attorney General is far-fetched and unfortunate as it obfuscates Phiri’s simpler matter.  Phiri's matter is by Tuchten and company now deliberately obfuscated and confounded with with loads of dissimilar matters where apparently violent criminals (if I read the Tshabalala et al case well) were trying to dodge the law by making most extraodinary demands. 




That was on one hand. 




Phiri, on the other hand, I am requesting what the state, by its own handwriting as seen by Tuchten, says it has in its possession—(quote "a report was written and given to those concerned..." end quote). 






The respondent/Blogger/Phiri was arraigned to appear before the military court on 9 March 2001. He was charged with several offences, including using threatening or insulting language, insubordination and disobeying lawful orders. (Tuchten’s genesis and opening line over this dispute is misleading in that whereas the matters under dispute and for the attention of his court concern happenings prior to the 9-March-2001charges, Tuchten decides to initiate the matters where Phiri is at his backfoot.  For Tuchten to start his reasoning post-9-March (from the day of the charges) bespeaks the error of judgement that the honourable judge finally makes at the end of his reasoning to the detriment of Phiri.  It also explains the verbal utterances of Southwood—quote Southwood—where he verbally unncecessarily read to court the charges that [black Phiri had alledgedly insulted Southwood’s fellow by means of calling him a white racist].


But even if one would, as Tuchten did, glue the whole Phiri application on the 9-March charges and make an issue of those charges as Southwood’s verbal utterances as if Phiri was some violent Criminal Shabalala, surely the main and first charges do mention for the clear reading of Tuchten that the charge stems from a incident of 06 February, some 35 days prior to the day of the charge!






As to why a report that was compiled in that interim period of 35 days is found by Tuchten to be either irrelevant or “already handed” to Phiri (when it still has not) beats me.

2. On 23 March 2004 the respondent[/Phiri/Blogger] brought an urgent application before this court under case no. 7697/2004, alleging (It was not an “allegation”, Honourable Judge Tuchten,  rather it was a lawful “contention” to have the main charges ventilatted which to this day remain unventillated.  “Allegation”, if your English is in order (the Queen, Elizabeth II, be our judge), is a word much much stronger than “contention”.)that he was entitled to certain documentation in the possession of the Department of Defence. (The purpose of this application is to obtain an order declaring that the Applicant is entitled to have access to the reports wherein his name is mentioned AND THAT MENTION STEMS FROM KLEYNHANS’S AFFIDAVIT WELL PERUSED BY THE JUDGE)On 23 March 2004 and in default of appearance or opposition by the appellants, the High Court stayed the proceedings in the military court pending compliance with its orders directing the first appellant to provide the respondent with certain identified documentation.

3. Amongst the documentation which the High Court directed the first appellant to provide was the following, relevant to this appeal, which I shall call collectively the documentation in issue:

3.1 "South African Army Inspector General's report, involving Phiri

et al at the South African Army College, February to March 2001"; and

3.2 "The B. Matt Intervention report (intervention at the SA Army College-January/February 2001 bythe British Military advisors to SA National Defence Force".

4. The trial before the military court was part heard when the High Court granted its order. On 8 October 2004, the respondent's trial before the military court was due to continue but the respondent sought, and was granted, a postponement on the ground that the documentation in issue had not been produced. At the same time, the military court ordered that a "ministerial investigation report" be handed over to the respondent.

5. The Minister of Defence’s case is that the documentation in issue had indeed been provided under cover of a letter dated 19 April 2004. The Ministry of Defence says that they provided what they had in relation to the South African Army Inspector General's report in what they called Enclosure 1 and to the British Military Advisory Training and Technical Intervention Report in what they call Enclosure 4. (It is exactly that which they had and did provide, which clearly shows that they are still in contempt in that they have deliberately withheld “a report that was drafted and given to all concerned” which “concerned” did not then involve Phiri the one and only member who was todate subsequently to be charged the said racial conflict that not only Mashoala came to investigate, but also was to become the gravamen of Claassen’s order as correctly quoted by Tuchten. The point here is: if in the eyes of the Minister of Defence ‘Phiri was not one of the concerned, SURELY PHIRI HAS SINCE CLAASSEN (CASE NUMBER 7697/2004)BECOME THE ONE AND ONLY CONCERNED ONE SEEING THAT PHIRI IS NOW THE ONLY ONE CHARGED STEMMING FROM THAT TOUTED RACIAL CONFLICT. JUDGE CLAASEN DID GIVE PHIRI THE RIGHT TO HAVE A COPY OF GIVEN TO THE ‘THOSE CONCERNED’, SOMETHING WHICH TUCHTEN ERRED IN FAILING TO ENFORCE)

6. The respondent's answer to this claim of full compliance is contained in a letter dated 3 May 2004, written by the respondent's attorney to the State Attorney. The respondent's complaints in relation to the documents provided under cover of the letter dated 19 April 2004, to the extent relevant, were as follows:2

6.1 In relation to Enclosure 1:

Enclosure 1 is incorrect in that what is sought in terms of the court order is specifically the SA Army Inspector General's report instigated by the SA Army College presiding General Moshoana, which report was finalised on the 6th March 2001. Full transcript of the witness testimony is required as it is relevant to the proceedings presently before the court of a Military Judge, Thaba Tshwane.

6.2 In relation to Enclosure 4:

Enclosure 4 thereof relation to the B Matt intervention report is truncated and incomplete as it lacks the deliberations by our client and the Board's response. Full communicate is missing in its entirety.

7. By notice of motion dated 25 July 2005, the appellants moved the High Court for an order declaring that the first appellant had fully complied with the order of 23 March 2004. The appellants' case was simple(No, judge, it is not simple.  What is simple is the aplomb with which the judge, with respect, has made a concious choice to believe the version of the Minister of Defence and Veterans’ Affairs): they said that they had provided what documents they had in relation to the documentation in issue and could do no better because the additional documentation sought did not exist. (Tuchten cannot cannot make an arbitrary decision Defence Minister is truthful when the very facts provided by none other than Minister himself prove otherwise---quoute---- “a report was drafted and given to those concerned” so where is that report? And how can reports and documents drafted by the Deparment and distributed to a number of people SUDDENLY STOP EXISTING UNDER THE JUDGEMENT OF TUCHTEN?)

8. In the answering affidavit, but not in the attorney's letter to which I have referred, the respondent claimed further to be entitled to the "ministerial investigation report" referred to by the military court when it granted the postponement on 8 October 2004.

9. In relation to the complaint that Enclosure 1 did not contain the SA Army Inspector General's report instigated by the SA Army College at which General Moshoana [sic] presided and a full transcript of the witness' testimony, the appellants said that they had given the respondent what they had. They pointed out that the respondent had misspelt the name of Brigadier General Mashaola (ie not "Moshoana") and that the general had not compiled the report, as in fact the report had been compiled by Colonel Mokalake.

10. The respondent's answer to this is that there is a report of the SA Army Inspector General finalised in March 2001. He does not dispute that the report was prepared by Colonel Mokalake but says that the report he wants and which the High Court order the first appellant to produce is not that contained in Enclosure 1. (Tuchten deliberately goes to misrepresent Phiri’s response here.  In fact Phiri did cogently and vociferously dispute Number 9 above.  Phiri said whether it was Mashoala or Mokalake who did the investigation was beside the point seeing that Mokalake, and White, for that matter were subordinates of Mashoala’s with whom they conducted the said investigation so that whoever compiled the report among the three was irrelevant in that it all points to the accountabiity of one man: the Mashoala character who can always delegate power of execution to his subordinates but can never delegate responsibility including responsibility to the shambles that the particular investigation became by, firstly, Excluing the inputs of the“main culprit Phiri in the racial conflict” and, secondly, to this day denying Phiri (the subsequently-accused) his copy of that “report that was drafted and given to those concerned”)

11. In reply the appellants reiterate that they have given the respondent, through Enclosure 1, all they have in relation to the SA Army Inspector General's report.

12. In relation to the complaint that Enclosure 4 is truncated and incomplete as it lacks the deliberations by the respondent and the Board's response, the appellants say that no B Matt intervention report exists but that it provided what records it had of a meeting of a body called the JCSD Assessment Board, at which no such deliberations were minuted. Forthese reasons, the appellants say, the further documentation sought in relation to Enclosure 4 does not exist and cannot be provided.

13. The respondent's answer to this is to admit that "the B-Matt intervention report does not exist and only the minutes of the JCSD Assessment Board exist".(The animosity of Tuchten crops up again whe the Honourable Judge and his bench make a direct quotation which does not exist anywhere in my entire High Court proceedings over this matter.  At no stage did Phiri ever admit such, but these are mere allegations about me made by Minister Sisulu who puts words into my mouth as if she lives in my head. Honourable Tuchten takes those allegations on face value and even goes to the extraordinary extent of making a quoation that is nowhere to be found in Phiri’s word of mouth or print! Ad paragraph 3:  Lt Col Phiri is fully aware that no "deliberations"F) He insists that in the minutes of the Assessment Board there will be a record of the deliberations in question.

14. The appellant dealt with the "ministerial investigation report" in the replying affidavit and demonstrated conclusively that it does not exist. This conclusion renders the order of the military court relating to production of the "ministerial investigation report" moot, ie incapable of fulfilment and the order of the military court in this regard must not be utilised further to delay the trial of the respondent.

15. In argument before us, the respondent (Phiri) accepted that(”that” what? In reference to Para 14 or in reference Para 15(“[Minister of Defence] had complied with the order of the High Court”?  Why is Tuchten falling back on ambiguities here? And on what basis does Tuchten deepen the ambiguity even further by stating [the respondent (Phiri) accepted this but his counsel raised this or that] as if it was two people (Phiri and his counsel at sixes and sevens)?   The Honourable Tuchten and the two judges (inclusive of Spokesman Honourable Judge Southwood) with him all lily-white over a matter of a black SouthAfrican man who allegedly insulted a white man in the army, know very well that at no stage of the [argument before us three judges… together with a fourth white man who had been roped in simply because there had (like in the case of the Minister Sisulu) to be a senior counsel for Phiri], Phiri was ever allowed to utter a word. If anybody uttered a word, it was a white man I was seeing for the first time in that court (and was never to see him again since…the said white senior counsel for Phiri), addressing his fellow-whites, the three judges, inclusive of verbose Honourable Southwood, headed by Judge Tuchten.”) on the appellants' version, they had complied with the order of the High Court. But his counsel submitted, the respondent's version raises a dispute of fact which, on the Plascon-Evans rule, cannot be resolved on paper. (If that was what the fourth whiteman told the judges, whatever it means “Plascon-Evans rule”, those were not my instructions nor had I instructed him to tell to Tuchten’s team that I, Phiri, “accepted that that the [the Minister of Defence] had complied”. If I had accepted that, what, then, would have been the reason for me opposing the the Minister of Defence in the first place?  Factually, in those 4 to 8 minutes deliberations over the matter where only the fourth whiteman was allowed to speak to the full bench…I think that is what they call court procedures… although I will submit it was a travesty of justice, at no stage did Tuchten give the fourthwhiteman a chance to consult with me where maybe I could have given a different instructions to him that I, Phiri, “the respondent accepted that” there was compliance.  In any case, on what bases would any yardsticks like Plascon-Evans be applied on arguments that Judge Tuchten has errantly submitted as fact when these are mere quotations incorrectly ascribed to Phiri?)

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...[(to the reader of this post, Blogger's elucidation on the Mashoala character, please check the yellow highlight to be found here)]....

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1Shabalala and Others v Attorney-general of Transvaal and Another 1995 2 SACR 761 CC

Jacob Zuma (Mr) and some unnamable character