HIGHCOURT JUDGES CLAASSEN AND SITHOLE

"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

IN THE HIGH COURT OF SOUTH-AFRICA [TRANSVAAL PROVINSIOL DIVISION]
On 23 March 2004
Before His Lordship Justice Claassen
In the matter between:
PHIRI C.M.
V
THE MINISTER OF DEFENCE + 5 CASE NR: 7697/2004
APPLICANT
1st RESPONDENT

DRAFT ORDER
After hearing counsel and after having read through the papers, THIS COURT ORDERS AS FOLLOWS:
1) Order made in terms of prayers 2, 3, 4 and 6 of the notice of motion.
2) It's further ordered that if the respondents wish to withhold any of the information or documentation sought, 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.

IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISIONI



-:)MAN MANYANYA PHIRI
lVIINISTER OF DEFENCE Respi-iniient
SECRETARY FOR DEFENCE -
Liespon,„ent
'• OF THE SOUTH AFRICAN
(.7iNAL DEFENCE FORCE f3espondent
Help nt
CHIEF OF THE S A ARMY t)!3 H S PRETORIUS
)NEL A A VENTER

NOTICE OF MOTION


JLY TAKE NOTICE that the abovementioned Applicant to briy,:..1an
application to the above Honourable Court on 23 Mach 1 4:00 or
on thereafter as counsel may be heard for an order in the
t• That the forms and service provided for in terms of the Ruie, of the above
Honourable Court be dispensed with insofar as it may be -3r),:j the
Ipplication be heard as one of urgency in terms of ti;:i!.ur,y, 6(

LT COL G M PHIRI be stayed pending the orders prayed for uider prayer 3 and 4

3 An order declaring that the Applicant is entitled to si r., access to
documents and/or information held by the First Resporid,r7,ol, alternatively, Fifth Respondent in the Applicant's exercising or protecting his rights in a trial pending in the Military Court;
fS'F
That the j.f-th Respondent alternatively, Fifth Responcient.t. wdered and
directed to furnish Applicant with the following docurneiit
(a) South African Army Inspector General's report invoilviiv Phiri et al at
the South African Army College; February to March 20'1;
(b) The Commander's investigation report as 0 acting
Commandant of the S A Army College Colonel Edvlard France Drost to look into complaints against Lt. Col. Phiri; March
(c) , The B Matt intervention report (intervention at the S A: my Co loge -
January/February 2001 by the British Military adviscins A Naijonal
Defence Force,
Idithin 7 days of the date of the Court order.

Granting the Applicant such further or alternative relief as this Court deems fit;
Ordering that the First Respondent pays the costs of this ,u;ation,
KE NOTICE FURTHER that annexed affidavit of GOODMAN MANYANYA PHIRI
innexures referred to therein will be used in support of this appiication.
NOTICE FURTHER that the Applicant has appointed Msiza ANorneys, 3rd Suite 335, Standard Bank Chambers, Church Square, 'rotor , telebhone
Hher (012) 326-5346, cell phone number: 082 965 0716„AttentL..): Joe fvlsiza attorneys at which he will accept notice and service of all , These
..°)t_Y TAKE NOTICE that if you intend opposing this application you ;:lre required:
(a) to notify the Applicant's attorneys in writing or t.,7dephone on
Tuesday, 23 March 2004 by not later than 11 :0(7) and
(b) to deliver your answering affidavit, if any, by not w
%--(A
AT PRETORIA THIS 3 DAY OF MARCH 2004

(SGD.) MSIZA S.J.
MSIZA ATTORNEYS
ATTORNEYS FOR APPLICANT
3RD FLOOR, SUITE 335
STANDARD BANK CHAMBERS
CHURCH SQUARE
PRETORIA
TEL: (012) 326-5346
CELL: 082 965 0716
REF: MSCZAIP027
THE REGISTRAR OF THE ABOVE HONOURABLE COURT PRETORIA

u TO: THE MINISTER OF DEFENCE
FIRST RESPONDENT
C/O THE STATE ATTORNEY
4TH FLOOR - FEDSURE FORUM
CNR VAN DER WALT & PRETORIUS STREETS PRETORIA

) TO:
TO: THE SECRETARY FOR DEFENCE
SECOND RESPONDENT
C/O THE STATE ATTORNEY
4TH FLOOR - FEDSURE FORUM
CNR VAN DER WALT & PRETORIUS STREETS PRETORIA
CHIEF OF S A NATIONAL DEFENCE FORCE THIRD RESPONDENT
C/O THE STATE ATTORNEY
4TH FLOOR - FEDSURE FORUM
CNR VAN DER WALT & PRETORIUS STREETS PRETORIA

CHIEF OF S A ARMY
FOURTH RESPONDENT
CIO THE STATE ATTORNEY
4TH FLOOR - FEDSURE FORUM
CNR VAN DER WALT & PRETORIUS STREETS PRETORIA
MAJOR H S PRETORIUS
FIFTH RESPONDENT
SOUTH AFRICAN NATIONAL DEFENCE FORCE 2ND FLOOR, ARMSCOR BUILDING ERASMUSKLOOF
PRETORIA
THE MILITARY COURT'S JUDGE JUDGE-BOTHA tf c=am -r
SOUTH AFRICAN NATIONAL DEFENCE FORCE 2ND FLOOR, ARMSCOR BUILDING ERASMUSKLOOF
PRETORIA

IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
CASE NUMBER:
In the matter between:-
GOODMAN MANYANYA PHIRI Applicant
and
THE MINISTER OF DEFENCE First Respondent
THE SECRETARY FOR DEFENCE Second Respondent
THE CHIEF OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE Third Respondent
THE CHIEF OF THE S A ARMY Fourth Respondent
MAJOR H S PRETORIUS Fifth Respondent
COLONEL A A VENTER Six Respondent
FOUNDING AFFIDAVIT
I, the undersigned,
GOODMAN MANYANYA PHIRI
do hereby declare under oath as follows:


1.1 I am an adult Lieutenant Colonel in the South African National
Defence Force with my address of employment situated at
1.2 I am the Applicant in this matter and the facts contained herein are,
unless contrary indications expressly appear, within my personal knowledge and are to the best of my knowledge and belief both true and correct.
2.
The First Respondent is the MINISTER OF DEFENCE FORCE, cited herein in his official capacity, assigned powers and functions in terms of the Constitution Act, c/o The State Attorney, 4th Floor, Fedsure Forum, Cnr Van der Walt and Pretorius Streets, Pretoria, Gauteng.
3.
The Second Respondent is THE SECRETARY FOR DEFENCE, cited herein in his official capacity and as Departmental Advisor on Defence policy to the First Respondent with his address at c/o The State Attorney, 4th Floor, Fedsure Forum, Cnr Van der Walt and Pretorius Streets, Pretoria, Gauteng.

4.
The Third Respondent is the CHIEF OF THE S A NATIONAL DEFENCE FORCE (SANDF) cited herein in his official capacity as such with his address at c/o The State Attorney, 4th Floor, Fedsure Forum, Cnr Van der Walt and Pretorius Streets, Pretoria, Gauteng.
5.
The Fourth Respondent is the CHIEF OF THE SOUTH AFRICAN ARMY, cited in his official capacity as the Chief of the Service, c/o The State Attorney, 4th Floor, Fedsure Forum, Cnr Van der Walt and Pretorius Streets, Pretoria, Gauteng.
6.
The Fifth Respondent is H S PRETORIUS, a Major in the South African National Defence Force, cited herein as a competent official or Information Officer of the Department of Defence who received the Applicant's request for Access to information, Erasmuskloof, Pretoria, Gauteng.
7.
The Sixth Respondent is COLONEL A A VENTER, a Judge of the Military Court

with his address at South African National Defence Force, 2nd Floor, Armscor Building, Erasmuskloof, Pretoria, Gauteng.
8. THE PURPOSE OF THIS APPLICATION:
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 to enable him to conduct his defence and further to obtain and order directing the First and Fifth Respondent to supply copies of the documents or reports to the Applicant, for the purposes of the Applicant's conducting his case at the Military Judge's Court. I also seek an order suspending the proceedings at the Military Judge's Court pending that I be supplied with the documents or reports.
9.
I am bringing this application on an urgent basis as I am suffering and will continue to suffer irreparable harm, as set out more fully hereunder, if the trial at the Military Court is allowed to proceed without me being furnished with the documents I require.

BACKGROUND TO THE APPLICATION:
10.
I was integrated into the South African National Defence Force in 1998. I have always been a disciplined member of the South African National Defence Force and have only acted to protect my rights as enshrined in the Constitution of the country. I have always respected those of a senior rank than myself in all my dealings with them at the Defence Force.
I was arraigned to appear in the Military Court on 9 March 2001. The reasons for such arraignment were given to me in the form of eleven charges which were preferred against me. Without going into too much detail to the relevance and/or factual background pertaining to the charges preferred against me, I wish to bring to the attention of the above Honourable Court, as briefly as I can, what the implication are on me if such charges are proved against me.
12.
I was arraigned in terms of the Military Discipline Code read with the Defence Act
No. 44 of 1957 as amended as well as the Military Discipline Supplementary


Measures Act to appear in a Military Court to face disciplinary and/or criminal charges which were preferred against me by the State.
13.
All in all these charges were 11, being 6 charges as well as the alternative charges. The charges I am facing in the Military Court range from, inter alia using threatening, in subordinate or insulting language, conduct prejudicial to military discipline, riotous or unseemly behaviour to the common law crimen inuiria. Should I be convicted of any of these offences, an obligatory prison term sentence will be imposed on me for a period not exceeding six months. In addition to the above, on conviction, I will also lose my employment as this position is quite evident from the provisions in the Defence Act, and the Military Supplementary Measures Act. In confirmation of the aforegoing, I attach hereto copies of the charge sheet marked Annexure "GMPl" and the above Honourable Court is respectfully referred thereto.
14.
The charges preferred against me were pursuant to some investigations during the course of which certain statements were obtained from witnesses. These witnesses make reference to the documents or reports compiled when I was at the Army College. I have not had sight of the reports and as such I am prejudiced as

I am unable to conduct any effective cross-examination of the witnesses who already have testified against me.
15.
During my early appearances at the Military Court, on or about 13 November 2001, I immediately requested that I be afforded an opportunity to exercise my right of access to the reports. I sent a letter date 13 November 2001 to the Fourth Respondent. In my letter, I established my right to be furnished with the documents and also explained the importance of being furnished with documents to enable me to prepare my defence for the criminal trial. In corroboration hereof, I annex hereto a letter dated 13 November 2001 together with annexures to the letter, marked Annexure "GMP2".
16.
On or about 29 November 2001 I received a letter from the Senior Prosecution Counsel, LT. COL. F J BOTHA, responding to my letter of 13 November 2001. I was advised that the documentation is not directly obtainable from the prosecution counsel. A copy of the letter is attached hereto and marked Annexure "GMP3". I wish to digress and bring to the attention of the above Honourable Court that I, on 25 September 2001, also sent a letter to the custodian, the Fourth Respondent, requesting an appointment with him in connection with my case at the Military


Court. I sought an appointment with the Fourth Respondent to receive his advice and also to register my grievance. It is permissible and procedural in terms of the Military Code to approach the Fourth Respondent with a grievance, (subject to having informed my supervisor). A copy of a letter I forwarded to the Fourth Respondent is attached hereto and marked Annexure "GMP4".
17.
17.1 In early 2002 I brought an application at the Military Court that the
prosecution be ordered to furnish me with the documentation. This application came before MILITARY JUDGE H J LUUS. The Honourable Judge said he does not have the power to order the documents to be furnished to me. He however, advised that I should follow the procedure as provided for in The Promotion of Access to Information Act, No. 2 of 2000. On advice of the MILITARY JUDGE LUUS, I instructed my defence counsel to duly assist me in obtaining the documents or information in the manner provided for in The Promotion of Access to Information Act, which documents I seriously require for the exercise or protection of my rights in the criminal trial.
17.2 My defence counsel made an application on my behalf on 28 February
2002, in a prescribed form in terms of the Act. In corroboration
hereof, I attach hereto Form A, being my application in terms of

Section 18(1) of The Promotion of Access to Information Act, 2000, marked Annexure "GMP5'.
18.
In May 2002, I received a letter from MAJOR H S PRETORIUS, being the information officer, advising me that the documents will not be furnished to me as such records are requested for the purpose of civil proceedings. Quite obviously, MAJOR PRETORIUS' reply was premised on an incorrect assumption. I did not require the records for the purpose of civil proceedings. In confirmation of the aforegoing, I attach hereto the letter dated 9 May 2002, marked Annexure "GMP6".
19.
I was not satisfied with the reasons furnished to me for the refusal by the "information officer" of my request to access the reports. I require the records in issue for the purpose of criminal proceedings and not for civil proceedings as stated in paragraph 2 of Annexure "GMP6". Accordingly, I proceeded to launch an internal appeal against the decision in terms of Section 75 of Act 2 of 2000. In confirmation of the above, I attach hereto Form C, being my notice of internal appeal which is marked Annexure "GMP7", to which I respectfully refer the above
Honourable Court.

20.
On 11 July 2002 I received a letter from MAJOR PRETORIUS in which I was advised that I am not entitled to access the documents that I requested in terms of The Promotion of Access to Information Act, but should avail myself of the remedies provided for in the Rules of Procedure applicable in Military Courts made in terms of Section 44(4) of the Military Discipline Supplementary Measures Act, Act No. 16 of 1999.
21.
The Section I have been referred to relates to the powers of the Minister in amending the prescribed rules applicable in the Military Court as well as in amending the regulations to the Defence Act of 1957. If there is any relief provided for that I can pursue in the said section, it will rather be, a far-fetched procedure and inappropriate under the circumstances. A copy of the letter dated 11 July 2002, written by MAJOR H S PRETORIUS, is attached hereto and marked Annexure "GMP8".
22. 22.1 When the matter resumed at the Military Court in early 2003, the

application to access the information or documents I require in order for the trial to proceed. JUDGE LUUS reiterated that he cannot make an order compelling the State to avail the documents to me. He did not have the requisite authority to do that. In his endeavour to ensure that justice is meted out to me, he appealed to the prosecution authority that I be furnished with the documents.
I was astounded by the Judge's reluctance to make an order that I be furnished with the documents. I, interpose, to mention that I have a right to be furnished with the said documents in terms of the Constitution Act and none of the Respondents contends my right to be furnished with documents for purposes of conducting a proper defence. In fact, a letter was forwarded to me dated 5 March 2002 by MAJOR H S PRETORIUS wherein I was advised that the DOD Information Centre was busy inspecting and scrutinising the relevant records before releasing the documents to me. I was also advised that the access fee will be calculated and I will be informed of same. In this regard, I submit that a legitimate expectation was created that I will be furnished with the documents to which I, in any event, am entitled to receive. In corroboration of the aforegoing, I attach hereto a letter dated 5 March 2002 signed by MAJOR PRETORIUS, marked Annexure "GMP9".

22.3 The only reasons I could think of, relating to JUDGE LUUS' reluctance
to order the State to furnish me with these documents, is the institutional pressure and discomfort on him, having to order his senior, the Chief of the S A Army, to supply the documents to me. In view of this indecisiveness, the Judge made an appeal to the prosecutor that I be furnished with the documents. The Judge's request was received by the prosecutor without demure. The hearing was adjourned on assumption that I would be furnished with the copies of the reports.
23.
On resumption of the hearing, a new Judge was now presiding on the matter, namely JUDGE VENTER (retired Colonel). My counsel once again raised the question of the documents I have to receive from the State. The Judge's reply to this issue was simply that: he does not know anything about the documents and he was starting the case de novo. From the Judge's indication and attitude, I gained the impression that he came to the hearing with a single mission - to proceed with the hearing irrespective of whether I have been furnished with the documents or not. He was intent on ignoring fair procedure and his agenda was clearly outside proper administration of justice. I found myself to be unfavourably disposed towards him as he showed bias in his handling of the issue relating to the documents. Accordingly, I applied for his recusal and my application was refused.


24.
24.1 JUDGE VENTER, nevertheless, postponed the matter to a later date.
After this postponement, various other postponements occurred until 27 January 2004. When I appeared on 27 January 2004, a_new Judge was appointed, namely JUDGE KOLBE (Colonel).
24.2 I, through my defence counsel, informed JUDGE KOLBE that we still
await to receive the documents from the prosecution. The Honourable Judge was further advised that the previous presiding officer, JUDGE LUUS requested the prosecution to furnish us with the documents and until that date, we have not been furnished with the relevant documents.
25.
The prosecution, (through CAPTAIN VAN SCHALKWYK), contended that she does not have the authority to request the documents from her seniors and could not assist the defence in this regard. She suggested that I should write a letter to BRIGADIER GENERAL SLABBERT, a head of the prosecution authority, in which letter I should request the documents.


26.
26.1 It is quite evident that, everybody seems to acknowledge and accept
that I need the documents for the proper conduct of my defence, but clearly, nobody seems to accept the responsibility to ensure that I am provided with these documents.
26.2 May I further mention to the above Honourable Court that, JUDGE
KOLBE, recused herself from presiding in this matter, having cited personal reasons for her recusal.
26.3 A letter was indeed written by my defence counsel and addressed to
BRIGADIER SLABBERT on 17 February 2004, a copy whereof is annexed hereto as Annexure " GMP1 0" . The above Honourable Court will note that this annexure refers to appendix 1 to 6 which are nothing but letters I have referred to elsewhere in this affidavit.
27.
A reply from BRIGADIER SLABBERT is that the documents I require have already been furnished to me. This response is obviously not true and I rejected it. I insisted that I do not have the documents and still await to receive them.

-15-
28.
28.1 In the meantime, the matter was adjourned to 24 February 2004 - 26
February 2004. When I appeared at Court, another presiding officer was appointed. I appeared before JUDGE A A VENTER (a Colonel from the Free State). The issue of documents was again brought up at the commencement of the proceedings. The Judge rejected out of hand, our insistence on receiving the documents. He blamed me of having delayed the trial with these documents and as such he was not going to entertain the issue of documents. He mentioned that in the interest of justice he wanted to carry on with the trial. I requested a postponement to enable me an opportunity to approach the High Court for an order directing the head of prosecutions to furnish me with the documents.
28.2 JUDGE VENTER refused a postponement and ordered me to go to the
stand and insisted that I plead. I tendered a plea of not guilty to all the eleven charged preferred against me.
28.3 The prosecution called the first two witnesses. The testimony of
these witnesses relates to matters and issues appearing in the reports
to which I have been denied access. These are the witnesses who
also made statements contained in the preliminary investigation. In

this preliminary investigation, there is a repeated reference to the reports which I have not been furnished copies of.
29.
I instructed my counsel to reserve my right to cross-examine the two witnesses who were called to testify and JUDGE VENTER was advised that I will be approaching the High Court in the intermittent period for an order as per the notice of motion.
30.
The prosecution called the only two witnesses who were available on that day and thereafter the matter was postponed to 23 March 2004 at 18:00.
31. URGENCY:
For the abovementioned reasons it is obvious that my right to information to defend myself is being seriously compromised to an extent that the proceedings themselves have now become irregular.

-17-
32.
I further stand to suffer irreparable damage as I will be unable to question or cross-examine the witnesses who testified about the content of the reports.
33.
I have pursued all other possible remedies to access the reports, but all my endeavours have been suppressed by the Respondents. Despite the fact that all the presiding officers are of the view that I am entitled to have access to the reports, none of these presiding officers has the audacity to order the State to furnish me with these particulars, being the reports, to enable me to prepare my defence to the charges.
34.
It is explicitly clear from the above, that I have exhausted all the remedies provided for in The Promotion of Access to Information Act, of 2000, having launched an application, same being unsuccessful, having launched the appeal. My appeal was refused as per Annexure "GMP11".


35.
Having established the right that I wish to protect with the use of the documents, I have clearly exhausted all the available remedies. I submit that I have no other option but to approach the above Honourable Court.
36.
It is therefore respectfully submitted that I stand to suffer irreparable harm if the trial is allowed to proceed without me having had time to prepare adequately. Accordingly, I submit that there is sufficient grounds for the Honourable Court to condone the non-compliance with the rules in respect of notice and service and respectfully request the Honourable Court to condone the non-compliance as requested in the Notice of Motion.
37. RELIEF REQUESTED:
In the circumstances, the Honourable Court is requested to deal with the matter on the basis of urgency and grant the relief requested in the Notice of Motion.


-19-
DEPONENT
THUS SIGNED AND SWORN TO AT ON THIS ‘r, DAY OF
fyi 2004 BY THE DEPONENT, WHO HAS DECLARED THAT HE/SHE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT, THAT IT IS THE TRUTH AND THAT HE/SHE FINDS IT BINDING ON HIS/HER CONSCIENCE.
Before me :
COMMTwILNER 0 L
CARLOS MANUEL RODRIGUES SANCHES
HACK STUPEL & ROSS
COMMISSIONER OF OATHS
PRACTISING ATTORNEY
215-232 STANDARD BANK CHAMBERS
CHURCH SQUARE, PRETORIA

19/11/01 14:4a •A..1 Luz .)Diciau 1A4J,JO:11%., 41
CHARGE SHEET
No: .98007693PE
Rank: LT COL
Name: Goodman Manyanya Phirl
Corps: 'SAIC
Unit: SA Army Defence intelligence
(hereinafter referred to as the accused) who is subject to the Military Discipline Code in terms of Section 104(5)(a) of the Defence Act, Act 44 of 1957, as amended, and Section 3(2)(a) of the Military Discipline Supplementary Measures Act (MDSMA), Act 16 of 1999, is charged with the following offence (s):
FIRST CHARGE
Contravention of Sec i7 MDC (Using threatening,lnsubordinate or Insulting language )
n that on or about the 6m day of February 2001 and at or near Pretoria, the said accused unlawfully and intentionally used threatening language and/or behaved with contempt and/or displayed insubordination towards his superior officer, being No 77516003 PE Col Jan Hendrik Beyers Kleynhans, the Chief Instructor.of the Junior Command and Staff Duties Course at SA Army College by saying to the said Col Kleynhans that he, the accused does not agree with the way the Colonel does his job and replying to the said Colonel I am fucking telling you that!'
First alternative to the first charge
Contravention of Sec 46 (Conduct Prejudicial to Military Discipline)
In that on or about the 6t?' day of February 2001 and at Of near Pretoria the said accused unlawfully and intentionally or negligently caused actual or potential prejudice to the good order and military discipline, by saying to the said Col Kleynhans that he, the accused does not agree with the way the Colonel does his job and replying to the said Colonel : ' I am fucking telling you Mat!'
Second alternative to the first charge
Contravention of Sec 450) MDC (Riotous or urtseernly behaviour)
n that on or about the 6th day of February 2001 and at or near Pretoria tho said
accused unlawfully and intentionally or negligently behaved in an unseemly manner,
that by saying to the said Cod Kleynhans that he, the accused does not agree

14:49 FAX 012 3512190 LEGSATO TT PROS Um,
• with the way the Colonel does his job and replying to the said Colonel : I am
fucking telling you that!"
SECOND CHARGE.,
COITIMOil Law Crimen Hurls read with Section 56 MDC
in that on or about the 06rn day of February 2001 and at or near Pretoria the said accused unlawfully and intentionally said to No 77516003 PE Col Jan Hendrik Beyers Keynhans, the Chief Instructor of the Junior Command and Staff Duties Course at SA Army College You are a racist, and I hate racists' or words to that effect, with intention to impair his dignity and whereby his dignity was impaired.
First alternative to the second charge
Contravention of Sec 17 MDC (Using threatening,Insubordinate or Insulting language )
In that on or about-the el day of February 2001 and at or near Pretoria, the said accused unlawfully and intentionally used threatening language and/or behaved with contempt and/or displayed insubordination towards his superior officer, being No 77516003 PE Col Jan Hendrik Beyers Kieynhans, the Chief Instructor of the Junior Command and Staff Duties Course at SA Army College by saying to the said Col Kieynhans that You are a racist, and i hate racists' or words to that effect. •
Second alternative to the second chame
Cciatravention of Sec 4-6 (Conduct Prejudicial to Military Discipline)
In that on or about the 6- day of February 2001 and at or near Pretoria the said accused unlawfully and intentionally or negligently caused actual or potential prejudice to the good order and military discipline, by saying to No 77516003 PE Col Jan Hendrik Beyers Keynhans, the Chief Instructor of the Junior Command and Staff Duties Course at SA Army College that : 'You are a racist, and I hate racists' or word to that effect.
Third alternative to the second charge
Corrtravention of Sec 4-5(a) MDC (ftiototts or unseemly behaviour)
in that on or about the day of February 2001 and at or near Pretoria the said
accused unlawfully and intentionally or negligently behaved in an unseemly manner, in that by saying to No 77516003 PE Col Jan Hendrik Beyers Kieynhans, the Chief instructor of t?-re Junior Con-it-nand and Staff Duties Course at SA Army College that "Ycu are a roast, and I hate racists' or words to that effect

vo.L4190 LEGSATO TT PROS
THIRD CHARGE
Contravention of Sec 14(b) MDC (Absence without le.ave and non-attendanc where required to attend.)
In that on or about the Bt" day of March 2001 and at or near Pretoria, the saic accused unlawfully and intentionally or negligently and without good and strfndent cause left his place of duty to wit, SA Army College
FOURTH CHARGE
Contravention of Sec 14(b) MDC (Absence without leave and non-attendance where required to attend.)
In that on or about the 7ttl day of March 2001 and at or near Pretoria, the said accused unlawfully and intentionally or negligently failed to appear at a place of duty to wit, SA Army College at 08:00.
FIFTH CHARGE
Contravention of Sec 19(2) MDC (Disobeying lawful commands and orders)
In that on or about the 7th th day of March 2001 and at or near Pretoria, the said accused did unlawfully and intentionally or negligently disobeyed a lawful command given in the execution of his duties by his superior officer, being No 76532951 FE Col Edward Frans Drost, Acting Commandant SA Army College, in that the said accused must furnish the said Col Drost with a letter of explanation on the 080800B March 2001 regarding the said accused whereabouts on the 6th and 7th day of March 2001 whereby the said accused failed to do so.
SIXTH CHARGE
Contravention of Sec 17 MDC (Using threatening,insubordinate or insulting language )
In that on or about the 7th day of March 2001 and at or near Pretoria, the said accused unlawfully and intentionally behaved with contempt and/or displayed insubordination towards his superior officer, being No 76532951PE C,oI Edward Frans Drost, Acting Commandant SA Army College by not addressing the said Colonel on his rank and/or answering the said Colonel in a shouting tone of voice and/or arrogant manner and/or leaving the desk of Col Drost without saluting, saluting to the door and/ or giving Col Drost a command to salute the accused, and/or shouting at the said Col Drost °Okay, you don't want to salute me or words to that effect


First alternative to sixth charge —
Contravention of Sec 46 (Conduct Prejudicial to Military Discipline)
In that on or about the 7th day of March 2001 and at or near Pretoria the said accused unlawfully and intentionally or negligently caused actual or potential prejudice to the good order and military discipline, by not addressing the said Colonel on his rank and/or answering said Colonel in a shouting tone of voice and/or arrogant manner and/or leaving the desk of Col Drost without saluting, saluting to the door, giving the said Col a command to salute the said accused, and/or shouting at the said Col Drost 'Okay, you don't want to salute me' or words to that effect.
Second alternative to sixth charge
Contravention of Sec 45(a) MDC (Riotous or unseemly behaviour)
In that on or about the r day of March 2001 and at or near Pretoria the said accused unlawfully and intentionally or negligently behaved in an unseemly manner, in not addressing the said Colonel on his rank and/or answering said Colonel in a shouting tone of voice and/or arrogant manner and/or and/or leaving the desk of Col Drost without saluting, saluting to the door giving the said Col a command to salute the said accused, and/or shouting at the said Col Drost "Dcay, you don't
nt to salute me" or words to that effect
.1.90T1-1A) DATE
SENIOR PROSECUTION COUNSEL

RESTRICTED f-s-A-x .srnRa
Telephone: N :
'nquiries: (012) 355-5319
810-5319
(012) 355-5372
Col B.Q.P. Simelane CMLS 5/R/106/11/2/98007693PE
Department of Defence
Chief Military Legal Services Private Bag X159
Pretoria
0001a
/ 3Th November 2001

'1-=_QUEST FOR CERTAIN DOCUMENTS FOR THE PURPOSE OF A TRIAL 3EFORE A COURT OF SENIOR MILITARY JUDGE: 98007693PE LT COL WOODMAN MANYANYA PHIRI
. This matter was previously postponed to 26 November 2001 for trial.
Lt Col Phiri has furnished our directorate with copies of his written request for ain documents for the purpose of his trial. The documents furnished to us and enclosed herewith are the following:
(i) A letter dated 26 September 2001 addressed to the Chief of the SA
Army.
(ii), Appendix A to 2 (i) above being a list of documents required for court
purposes.
Appendix B to 2 (i) above being an urgent request for an appointment with Chief of the SA Army.
Please note that the request for access to information herein is in terms of
32 of the Constitution of the Republic of South Africa Act 108 of 1996 which alia reads as follows:
"(;) Everyone has the right of access to —
(a). any information held by the state; and
(b). any information that is held by another person and that is
required for the exercise or protection of any rights." (My
emphasis).
In view of the fact that the prosecuting authority is representing the state in :.,ourt and that the documents required are in the custody of the state, Prosecution Counsel is required to obtain the relevant documents from the Chief of the SA Army and furnish this directorate therewith at her earliest convenience to enable us to take further instructions thereon in preparation of the accused's defence.

RESTRICTED 2
Your urgent assistance herein will be high! ppreciated.



(COL B.Q.P. SIMELANE)
CHIEF MILITARY LEGAL SERVICES: R ADM
RQPSIAMM/.nd: Cd/court of sen mil jud/It col goodman

OiSTR
.or Action
HOC Legsato Thaba Tshwane For Info
Thief of the SA Army
In ernal (Attention: Lt Col F.J. Botha) (Attention: Maj K. Boshoff)
CIALS/R/98007693PE CMLS 5/R/106/11/2 Daily File

01 02 11a1Y FAAui. 3DIZIat) J.-Mk-70:11U 11 rxwo
RESTRICTED A sioi2t.cik-x.
011) 3

LTT 5/R/106/11/2
Telephone: (012) 351 2149
SSN: 553 2149
Facsimile: (012) 351 2190
Enquiries: Maj K. Boshoff Legsato Thaba Tshwane
Private Bag X 1044
Thaba Tshwane
0143
ti November 01

RE: TRIAL BEFORE A COURT OF SENIOR MILTARY JUDGE: 98007693PE LT COL GOODMAN MANYANYA PHIRI
1 'You're letter dated 13th day of November 2001 CMLS 5/R/106/11/2/98007693PE
refers
2. You're request regarding certain documents in terms of the Access to Information Act, Act 2 of 2000 pertaining to the trial of Lt Col Phiri are dealt with in terms of an order Issued by CMLS, Order 39/2001 incorporating CMLS SWP 2/20/01.
3. The requested documentation is not directly obtainable from the prosecution counsel.
4. For you're further attention.
c:71
HA)
SENIOR PROSECUTION COUNSEL: LT COL
DISTR
• For Action
Chief Military Legal Services
For Info (Attention: Brig Gen G. D. Spammer) (Attention: Col B. Q. P. Simelane)

Chief of the SA Army
Chief Military Legal Services (Attention: Brig Gen G. I. Slabbert)
Inter-hal
File° LTT 5/R/106/11/2
Daily File

CONFIDENTIAL ApPEr v 8 -770
9 8 cocr7
el • - Chief of the SA Army
P.O. Box 981
Pretoria
0001
_....,i—September 2001

Dear General
URGENT REQUEST FOR AN APPOINTMENT WITH CHIEF OF THE SA ARMY
1. On 25 Sept 01 I called your office to request an appointment in connection with a court case the SA Army College brought about against me, due to be heard on 26 November 2001.
2. In your absence I found Captain Jantjies, whom I asked to deliver this letter for the purpose that as soon as you are back an urgent meeting is scheduled.
3. On arrival I was informed that you are likely to only be available in October. This is for me sad because I highly wished to seek your advice before I take certain steps which, although geared towards safeguarding my rights iro the current court case, may have far-reaching implications for the Army and, indeed, the SANDF. Seeing that I wish to spare the SANDF any embarrassment I would like to seek audience from you before act. In a perfect world, this would have been even before I submit a forthcoming letter relating to documents the Army must forward to me for the purpose of the court case.
4. Seeing that you are currently unavailable I am terribly sorry because the first time you will realize my intentions is through the letter I will be submitting to your office in the next 48 hours. By that time, others will have probably seen and acted on it before your wisdom in this matter may have prevailed. -
5. I am currently torn between saving the good names of some senior Army officers on one hand, and safeguarding my own interests, on the other. Yet my options to save the said Generals' good names are limited by time because I have to prepare for the November court case in any case. I will nonetheless forever be both open and indebted to any forthcoming advice.
6. It would be appreciated if my request fOr ri'.6'ppointrnent would be favourably
considered. L • •
Yours faithfully to. rr.e
6.()
(G.M. PHIRI)
DIRECTORAT TECHNOLOGICAL INTELLIGENCE-SSO GROUND FORCES : LT COL


5
ANNEXURE P.5

FORM A
REQUEST FOR ACCESS TO RECORD OF PUBLIC BODY
Lion 18(1) of the Promotion of Access to Information Act, 2000 (Act No.2 of 2000)) [Regulation 2]
DEPARTMENTAL USE
Reference number:
received by (state
r- ame and surname of information officer/deputy information officer) on
(date) at (place).
ast fee (if any) • R
i2,it (if any): R
fee:
SIGNATURE OF INFORMATION OFFICER/DUTY INFORMATION OFFICER
PartiCulars of public body
:c.rmation Officer/Deputy Information Officer:

6
Particulars of person requesting access to the record
,-)e particulars of the person who requests access to the record must be recorded 10w.
rnish an address and/or fax number in the Republic to which information must be nt.
2of of the capacity in which the request is made, if applicable, must be attached.
times and surname: Bhekumndeni Qedusizi Penuel Simelane
.sy number: 4511115699086 address: Department of Defence, Chief Military Legal Services, Private Baq Pretoria 0001
L,
Fax number: (012) 355-5372
one number: (012)355-5319 E-mail address:
in which request is made, when made on behalf of another person:
Defence Counsel for Lt Co! G.M. Phiri
Particulars of person on whose behalf request is made
•r_,-tion must be completed only if a request for information is made on behalf of person,
-nes and surname: Goodman Manyanya Phiri
number: 6105045971083

D. Particulars of record
(a) Provide full particulars of the record to which access is requested, including the reference number if that is known to you, to enable the record to be located.
(b) If the provided space is inadequate please continue on a separate folio and attach it to this form. The requester must sign all the additional folios.
Description of record or relevant part of the record:
Copies of material submitted to the office of the Army 1G implicating Lt Col Phiri in any form of misdemeanour while still at the SA Army College
1. Reference number, if available: Unknown.
2. Any further particulars of record: N/A
1.



E. Fees
(a) A request for access to a record, other than a record containing personal information about yourself, will be processed only after a request fee has been paid.
(b) You will be notified of the amount required to be paid as the request fee.
(c) The fee payable for access to a record depends on the form in which access is required and the reasonable time required to search for and prepare a record.
(d) If you qualify for exemption of the payment of any fee, please state the reason therefor.
Reason for exemption from payment of fees: This is a request on behalf of a "personal re nester" as defined b the Act. A "• ersonal re uester" bein • a • erson seekin • access to a record containing personal information about the requester).




.3. If record consists of recorded words or information which can be reproduced in sound -
N/A Listen to the soundtrack
(audio cassette)
L. N/A Transcription of soundtrack*
(written or printed document) .


4. If record is held on computer or in an electronic or machine-readable form -
N/A i Printed copy of
record* 4 N/A printed copy of
information derived
from the record* N/A Copy in computer
readable form*
(stiffy or compact
disc)


*If you requested a copy or transcription of a record (above), do you wish the copy or transcription to be posted? YES . NO
AX=
A postal fee is payable.
•

Note that if the record is not available in the language you prefer, access may be granted in the language in which the record is available.
In which language would you prefer the record? English
G. Notice of decision regarding request for access
You will be notified in writing whether your request has been approved/denied. If you wish to be informed thereof in another manner, please specify the manner and provide the necessary particulars to enable compliance with your request.

10
How would you prefer to be informed of the decision regarding your request for access to the record? in writing
WHOSE BEHALF REQUEST IS ADE

APPENDIX A
TO 98007693PE
DD1,...FEB 02
SUMMARY OF INFORMATION ITEMS I WANT REQUESTED
1. Order given by APLA Office, (DHQ) to Lt Col Gcanga (Lt Col Phiri's representative
in tne B MATT meeting, Jan 01).
2 Document with Lt Col Phiri's acceptance/rejection of B MATT decision.
3) Copies of material submitted to the office of the Army IG implicating Lt Col Phil in
any form of misdemeanour while still at the SA Army College.
4. Copy of document(s) emanating from the SA Army College to Chief SA Army or to any of Chief SA Army's generals at Army HQ relating to "an incident at the SA Army College in which incident Lt Col Phiri was involved", hence the "board of inquiry conducted... investigating (Phiri-) related issues.... at that time, 06 Feb 01" (courtesy: v.Tit:en word under oath by Force Number 77516003 PE Col Jan Hendrik Beyers Kleynhans. see letter dated 23 Nov 01).
5. Copies of any written information exchanged between the Army Intelligence Frnn and the SA Army College/GOC Army Trng Fmn iro further JCSD academic prospects for Lt Col Phiri who failed one mgdule and now is ordered to redo the entire course, despite achieving above the required aggregate pass (see letter dated 23 Nov 01).
6.. Copy of Records of appearance "on office bearing for three times with the Cl.. ."
(being Force Number 77516003, Col Jan Hendrik Beyers Kleynhans) "...in this regard (with regards to work not being up to standard)". See relevant text in letter dated 23 Nov 01).
7 Copies of the "seven incident reports on his (Lt Col Phiri's) file with regards to Nork
not being up to standard" (courtesy "Affidavit of Witness Number One, being Col Kleynhans).
S. Copy of the document on which JCSD Branch proposed that Lt Col Phiri be
withdrawn from the JCSD Course because "he was out of depth and incapable of folbwing study methods" or words printed to that effect. This document was handed to both Li Col (Thin and to B MATT prior to the B MATT deliberations (chaired by Col Drost) over all aged poor academic performance by Lt Col Phiri.
9. (From GOC Army Training Fmn) Order or sworn statement explaining -;ommunication between GOC Army Training Formation and Army IG .compelling/necessitating the fqrmer to not only ignore action on the document titled Redress of Wrong Against A/Cmdt of the SA Army College Over the Etiquette of Salute" :dd 08 Mar 01), but to also send the said document to the IG.
10. Copies of gate pass register from SA Army College, JCSD Branch, for the period 05 Feb 01-08 Mar 01.

11 Copies of documentation exchanged between SA Army College and GOC Army
Trng Fmn, regarding the inclusion/exclusion of JCSD Course's Staff Paper as a "failing )ject" for the period 2000-2001.
12 Copies of all documents received by collective or individual DS for the purpose of
DS's own perusal and/or for the purpose of handing over to C Army/ Army 1G in pursuance of :he welfare/improvement of one OUI grouping or another which might have percei\.ed itself to be detrimentally affected by the army college conflicts that came to a head in the
elad Dec 00-Mar 01.
13 Copy of Computer Printout of entry to Army HQ Premises (De Quar Road) by ;311
sonnel during office hours for the period 01 Feb-06 Mar 01.
14 Copies of documentation exchanged between the SA Army College and GOC Army
Trng Fmn, regarding OUls who failed one module of the JCSD Course 2000-2001, in view o: the changes in the course curriculum.
15. Copies of all documents exchanged between, on one hand, the SA Army College's
Ss a group or as individuals (eg Col JHB Kleynhnas) and the OUI committee of the
JCSD course, headed by Lt Col K.E. Matti, on the other. Documents submitted io the
ty individual committee members in pursuit of their portfolios (eg Security Member)
a:sc.; be included.
16. Copies of mark sheets of all evaluations for the following OUls (clearly marked iro the instructods who conducted the said evaluation for the entire course period): (a) Li Col L.G Mokgoatsane. (b) Lt Col G.M. Phiri. (c) Lt Col K.E. Matti. (d) Lt Col W.N. Bobelo. (e) Maj R.W. Erasmus. (f) Maj S.J.P. Buys. (g) Maj C.B.S. Putter. (h) Maj A.C.G. Barn. (1: Maj Bekwa. (j) Maj Khumalo.
1 Order received by Army Inspector General (IG) to conduct the exercise he
stil-x:equently conducted at the SA Army College over the period Feb-Mar 01.
Copies of material submitted to the office of the Army 1G implicating Lt Col Phil in •7171of misdemeanour while still at the SA Army College.
Copy of report submitted by the office of the Army IG to C Army/Army Council etc, end of Army IG's (query) "Preliminary Investigation"! (query) Board of Inquiry a the .r my College over the period Feb-Mar 01.
Order received by Army Inspector General (IG) to conduct the exercise he ,ut.s7-:quently conducted at the SA Army College over the period Feb-Mar 01.
Copy of "...the Selection Board (B MATT) report which stated that the (Army
's JCSD) Branch recommended his (Phiri's) withdrawal from the course after 'ailing
2" (Courtesy: Paragraph 2 of AFFIDAVIT OF WITNESS NUMBER ONE being on Number 77516003 PE Col Jan Hendrik Beyers Kleynhans's statement under oath:
or dated 23 Nov 01).
The "orders document" that Col Drost claims (in his incident report dd 07 Mar 01 he proffered him (Phiri) on office orders of 07 Mar 01(see letter dated 23 Nov 01).

Copies of all office bearing occasions the Commandant, A/Commandant, Chief
:tor and Course Leader ever held with any and all Officers Under Instruction on the ;.; Course started 13 Aug 00-09 Mar 01 (office bearings ordinary instructors of they
Branch might have had with Officers Under Instruction to be also included).
Copies of office bearing occasions against JCSD instructors (Aug 00-Mar 01) by
nandant or any other competent SA Army College authority, relating only to the 7ig misdemeanours: (a) working under influence of alcohol or similar office, (b)
-g unhealthy and scandalous relationships with the Course OUls of the oppositt sex,
other similar offence. (c) The granting of favourable treatment to white students by
- ;ite instructor/DS member to the detriment of any or all black officers whether OS or d) Also, the granting of favourable treatment to black OUls by any black
tor/black Course Committee member to the detriment of any or all white OUls r DS or OUls.
Copy of minutes of B.MATT Selection Board meeting (chaired by Col E. Drost, ping Lt Col Phiri Jan 01.
SA Army College Commandant's sworn affidavit with list of all telephone numt ers cell-private or employer's- and office) of JCSD (701 G372200002, also attended by hiri. the Accused); similar numbers for members.of the Directing Staff of the
similarly, Dep/Act Cmdt Drost's telephone numbers in the same order, to be
all in relation to the duration of the course in question. (b) Telephone printouts and received numbers) for corresponding persons and corresponding telephcine-
categories mentioned in "a." hereabove. Printout requests are excluded for supporting staff, the officers under instruction and also excluded are printouts for AP members.
`)n a stuffy: Microsoft-Word-Format, File-Copy (please, neither transcription no¬. Id-paste!) of "Affidavit of Witness Number One" (Col Kleynhans, also see letter
3 Nov 01) This information is available on the SA Army College computer sy:,tem.
a stiffy: Microsoft-Word-Format, File-Copy (please, neither transcription no.
id-paste!) of "Incident Report" co-signed by Col Kleynhans and Lentsoe agailst Lt
iro of 06 Feb 01(see letter dated 23 Nov 01). This information is available oi he v College computer system
pies of JCSD Branch proposal/recommendation (signed by Col J.H.B.
to the (B MATT) Selection Board during Jan 01 concerning Lt Co! Phiri.
, •nt to be accompanied by sworn affidavit from DS member to the effect it is the
vritino handed to Lt Col Phiri prior to the deliberations with the B MATT sitting over
chaired By College A/Cmdt Drost.
ipies of Roll Call book/Attendance Register (inclusive of parade roll calls) over the 3 Mar 01 for OUls of the JCSD Branch. Full details to be also submitted ito :he ..vho conducted the parades in question.
Ty of a letter/statement etc written by Chief SA Army; by any of his general:,; and the SA Army College/JCSD Branch etc to the effect that (as per words under
it to Force Number 77516003 PE Col Jan Hendrik Beyers Kleynhans) "a bo.3rd of is conducted...was still investigating (Phiri-) related issues...at that time (06 Feb estigate a related incident where Lt Col Phiri was involved".

Telephone (home, cell —official and private- and office) printouts (dialled and
-d numbers) for GOC Army Trng Fmn (Brig Gen Steyn) for the period 01 Feb-21
'3A Army College Commandant's sworn affidavit with list of all telephone numbers cell) of JCSD (701 G372200002) OUls as was requested (from students) and duly to the College at the period in question.
:a) Army IG's sworn affidavit with list of all telephone numbers (home, cell.-official :ate- and office) of Aryny IG's personal self and the persons of his personnel (Cols Ind Mokalake) as of the period 01 Feb-31 Mar 01 (b) Telephone printouts for 13, i'te and Mokalake (home, cell -official and private- and office) dialled and received s for the period mentioned in paragraph a above.
,licrosoft-Word-Format, File-Copy (please, neither transcription nor copy-and¬, of "Affidavit of Witness Number Two".
',opies of the "seven incident reports on his (Lt Col Phiri's) file with regards to Nork up to standard" (courtesy "Affidavit of Witness Number One, being Col
4.

Sin P4.
CCS/CDCC/R1518/80 (2/3)
Department of Defence
(Information Centre)
Private Bag X161
Pretoria
0001
May 2002
1 Similane
: 355-5372
:QUEST FOR ACCESS TO RECORDS OF PUBLIC BODY : LT COL G.M. PHIRI Your request for access to records dated 28 February 2002 refers.
Section 7 (1)(a) of the Promotion of Access to Information Act (Act no 2 of 2000), -Itly provides that it does not apply to a record of a public body if that records is requested (He purpose of a civil proceedings-
This provision is made because other legal rules apply in such an instance. You :Id make this request visible by means of the relief afforded by the rules of civil :edure.
ttt to appeal
In terms of section 25(3) (c) you may lodge an internal appeal against the refusal of :equest
Should you wish to appeal against the refusal of the request you should direct your nal appeal in terms of-the provisions of section 74 of Act 2 of 2000, to the relevant uity, which is the Minister of Defence, or the person designated by the relevant authority.
• In terms of the provisions of section 75, the internal appeal must within 60 days be . or sent to Information Officer on the prescribed Internal Appeal Form (FORM C):

Department of Defence (Information Centre) Private Bag X161 Pretoria
0001
',umber: (012) 355-6398
regard0
• /

OR H.S. PRETORIUS) R.TMENT OF DEFENCE
CHIEF MILITAR SERVICES
2002 -05- 0 9
PR !!!AI BAC X159
FP=TOR!,\ Orp11
CHIEF MILITARY I_E■ nt , v CES

NOTICE OF INTERNAL APPEAL'
• (Section 75 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000))
[Regulation 6]
STATE YOUR REFERENCE NUMBER:
-)TE: A person who lodges an internal appeal nzay have to pay an appeal fee.
appeal fee is payable, the decision of the internal appeal may be deferred until the fee is
Particulars of public body
Information Officer/Deputy Information Officer:
e, C
Particulars of requester/third party who lodges the internal appeal
The particulars of the person who is lodging the internal appeal, must be completed
below.
Proof of the capacity in which appeal is lodged, if applicable, must be attached
If the appellant is a third person and not the person who originally reanested the information, the particulars Of the requester must be slated at C'
t:ames and surname: Ckr‘■
e..
6ty number: ( i ct ci
.tai address: ')e._,r) ctr F eC~t e— r cf–ct
ce.5 19r I v (Aft, gq.<-3 X s 9 Pr .0 4--c)rtCf (0C)c 1 Fax number: (Qt.)) —2. phone number: (C)1 -2-) 3 S E-mail(1 address: MIS e I • - • ""•:'•-'1` t.? 17 Capacity in which an internal appeal on behalf of another person is lodged: n Lr,-/ C_,p se, ( `rtrY -q.m. C. Particulars of requester This section must be completed ONLY if a third party (other than the requestei) is lodging the internal appeal. Identity number: D. The decision against which the internal appeal is lodged Mark the decision against which the internal appeal is lodged with an kV= in the appropriate box: . _ AX= Refusal of request for access. . Decision regarding fees determined in terms of section 22 of the Act. Decision regarding the extension of the period within which request must be dealt with in terms of section 26(1) of the Act. Decision in terms of section 29(3) of the Act to refuse access in the form as requested by the requester. Decision to grant request for access. • 18 E. Grounds for appeal If the provided space is inadequate please continue on a separate folio and attach it to this form. You must sign all the additional folios. State the grounds upon which the internal appeal is based: Ck,,--k/r\J2,y\R; S'Qra.-Cc■--c- State any other information that may be relevant in considering the appeal: F. Notice of decision on appeal You will be not. y7::1 in writing of the decision on your internal appeal. Ifyou wish to be informed thereof in another manner, please specify the manner and provide the necessary particulars to enable compliance with your request. A State the manner: Particulars of manner: FOR DEPARTMENTAL USE: OFFICIAL RECORD OF INTERNAL APPEAL: Appeal received on (date) by (state rank, name a. surname of information officer/deputy information officer): Appeal accompanied by the reasons for the information officer/dePiitY information officer's decision and, where applicable, the particulars of any third party fo.whom or which the records, submitted by information officer/deputy information officer on (date) to the relevant authority. OUTCOME OF APPEAL: DECISION OF INFORMATION OFFICER/DEPUTY INFORMATION OFFICER CONFIRMED/SUBSTITUTED BY NEW DECISION NEW DECISION: DATE RELEVANT AUTHORITY DATE RECEIVED BY THE INFORMATION OFFICER/DEPUTY INFORMATION OFFICER FROM THE RELEVANT AUTHORITY: ro LA,(6--.S I r c,-)-11--'"----- -c,[ •-__cz. r2_,,vz ,c)(- cN c,s, rock I. d`t. _s- 1 q S 5-€ ct-c-_,,c -,,_, pac--0--E)r,cr -, , .:: -F __120Q,c- ct-ei c',._Th I.—, 4,--cr-y-s ,c___ gs,c,,f„ „, , D__, s- c)F., 4i,___Q. A__, Q,-,. d c.,,, e_‘ t--,i--Isa. .../.-1_, cle6Q-cz,-----, f d. GL f--Q_ Cj. q (14 a__-,-\ .2 c, 2 17- 6 --k-ck- - --1 -I c \s--,_oz- is ct---,, ey-ed c,p,c_._F,..j .ri „.s,_, c%-p- ,-ter- re 0_ Ns c,:_- A. . r t ''-)n 1 r ''Aq ( C -.. CU 5 -CAD h t Cf- \ Ct e— \re ,-f-_'R c____s._._)_,c--._ c(,- c_ c: ----e,,-1_ f-, r_ e c--- v e,-, -E-f-)-c=-A-- .) 1--, ---V- -P-- U -At)? 1^a.5 Cc C c tn° e +0 1 ■ -ILK_ r ec_o F d ---S 1,--N t _S_S---t--QJ q. r-Z_, rA.,-.k- r 3 .• —17---), C-f----K CD1,--,-:--,-,_, (D-F_ b-cf--,-,,, gps_pc„.,--h',---i rit Li t ch` ri (,, c ,---,--, c.,J L([__ +c-__.' r e a Fct,S q S S'H c.-1 r -ec_3 r 4 s (3)Eq) 4-FikA e1-c2f- cf-CSCc) s s (.acs a 1-( ht- t-D -Fe! qr‘c [ Lliftto-) d of -f-cc dz.tcic • ftn CA-Cr—ci f reA of- tr-p Ire) Let---11-,s- (.). vdt Lpct *r_Qt 06-4_ 42t (-1 --a cc'-2 ct of -2, (t - 4- u jar foucd-e (r 61qc--, I- pe,[ cc( e_ ( /1-• y, f'-,,s (-4-Fri d.16L-- - '6'-r- , Vccit Al ( ,i-----r[-w\f g-'(/\ sE D'C'- AA ',J "c( crp ---ENNris- 71-(j I N _CT :1(.1 S 7-(2-L-L Cq-_ , . (LA- Cs/v" ) A Lc-340 L A-IS_I .• Eib Are,PA-,2e/rei --r- ex— Flag_ — AA-c_ ----- A-7 ---Ct-H-, __S_ /zi\ 0-Tr--- -A GCS F S 4 4-Ru ciez_21 _k_s /1-0 Ai cize --____ s s--\-(9 9 ,,-\.t,,i-c--d ,---) Gt_a c - k---u ip-0( -Ai-- a-J7-0-f---rc- - i---7'-s c Tuv---c- i--ec-1-cf cc_ ( c---k - V i--e.p ye J sckj, .D.[--) --tcrdz b cLyLs r-p---- --c--ef-). -1 u+D cof- ()C.ck) ecpct) fuv ipcprA Gt_cc;_s‘s -if .cf-T D*'r(0) er\fc-e vl-e'rrve Ci\AL_, 74-f-(5 DA-`-A (\E- 2o OD-- • W10E-NI t I CD `-'1 • (40 LLS LA/ -c,te Telephone: (012) 355-5575 Facsimile: (012) 355-6241 email: info@mil.za Enquiries: Dr W.G. Hendricks B.Q.P. Simelane 355-5372 :)TICE OF INTERNAL APPEAL: REQUEST FOR ACCESS TO RECORDS OF rBLIC BODY: LT COL G.M. PHIRI Tile above matter has reference. The Requester's legal representative, Col. B.Q.P. Simelane submitted that criminal pi-,Dceedings in the proceedings in issue have not yet commenced as contemplated in section 7( 1)(b) of the Promotion of Access to Information Act. • The Military Legal Services has indicated that whereas the serving of the indictment is commencement of the criminal proceedings in terms of section 76(1) of the Criminal -!ceciure Act, 1977 (Act No. 51 of 1977), the arraignment of an accused person in terms of 2ti01129(2) of the Military Discipline Supplementary Measures Act, 1999 (Act No. 16 of 1999) „Duld equally be regarded as the commencement of criminal proceedings in a Court of JnioriMilitary Judge. The aforementioned section 29(2) of the Military Discipline 1,Lipplementary Measures Act, 1999 (Act No. 16 of 1999) provides as follows: . a. "Any person warned in terms of a rule of the Code in respect of an offence shall be brought before a military court as soon as possible after receipt by adjutant of that person's unit or by a prosecution counsel of the written signed account of offence prescribed in a rule of the Code". The DOD respectfully differ from the submission made by the Senior Defence Counsel the Requester in this matter, Col. B.Q.P. Simelane, that "criminal proceedings in issue have Lt commenced as contemplated in.section 7(1)(b) of the Act" for the reason that none of the ,orities referred to above suggest that the pleading stage in criminal trials is regarded as the imencement of proceedings both in the lower and superior courts] In the light of the above the DOD respectfully stated that the Requester is not entitled to • -ss the documents that he requested in terms of the Promotion of Access to Information Act, should avail himself of the remedies provided for in the Rules of Procedure applicable in itary courts made in terms of section 44(4) of the Military Discipline Supplementary Measures 1999 (Act No. 16 of 19'9) in order to get an appropriate relief. JOR H.S. PRETORIUS) PARTMENT OF DEFENCE INFORMATION CENTRE 52 012-3556393 DOD COM SVC RESTRICTED Telephone: (012) 353-6328 Facsimile: (012) 355-6398 .. mail: infognailia i.TRL: www . mil. za 7nquiries: Maj F. Pretorius i B.Q.P. Similane 355-5372 id:QUEST FOR ACCESS TO RECORDS OF PUBLIC BODY : LT COL G.M. PHIRI I. Your request for access to records dated 28 February 2002 refers. The DOD Information Centre received your request to access records in the custody of a public body as defined by the Promotion of Access to Information Act (Act no 2 of 2000). The DOD Information Centre, SA Army and Defence Intelligence are at , present .1t-_-.rminin2 what information, records and source material is be available. -1. The DOD will inspect and scrutinise the relevant records before releasing the documents if necessary the DOD will issue third party notifications to the relevant parties regarding this :quest ' The access fees as stipulated in the regulations, will be calculated nearer to the finalisation :f your request. L Please note that the period for complying with, and finalising your request is 90 days, as ii-elated by the Act in Sec 87(1). You may contact the DOD Information Office regarding your request. Your co-operation in this regard will be appreciated. Ind regards. • MAJOR R.S. PRETORIUS) PARTMENT OF DEFENCE CHIEF MILITARY LELII,i '..ERVICES . 2002 -03- 0 5. F PiVATE BAr3 X159 FRETO:i!A 0001 CHIEF MILITARY LEGAL SERVICES S CMLS 5/R/98007693PE felephone: (012) 355 — 5319 Facsimile: (012) 355 — 5372 nquiries: Col B.Q.P. Simelane. Department of Defence Military Legal Services Division Private Bag X159 PRETORIA 0001 7-1-- February 2004 REQUEST BY SENIOR DEFENCE COUNSEL ON BEHALF OF THE ACCUSED TO BE FURNISHED WITH PRESCRIBED DOCUMENTS AS CONTEMPLATED N RULE 107 OF THE RULES OF PROCEDURE AND WHICH DOCUMENTS *ILL ENABLE THE ACCUSED TO PREPARE FOR HIS DEFENCE A request for documents dated 13 November 2001 and is addressed to GOiC Legsato Thaba Tshwane and the Chief of the SA Army. A letter dated 29 November 2001 addressed to Chief of the SA Army and Chief Military Legal Services by the Senior Prosecution Counsel at Legsato Thaba Tshwane. A letter dated 5 March 2002 addressed by the DoD Information Office to Col B.O.P. Simelane. A Notice of Internal Appeal in terms of section 75 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) and annexures thereto. A letter, dated 11 July 2002 entitled "NOTICE OF INTERNAL APPEAL: REQUEST FOR ACCESS TO RECORDS OF PUBLIC BODY: LT COL G.M. PHIRI" and is addressed by DoD Information Centre to. Col B.Q.P. Simelane. ppendix 6: The affidavit of Lt Col G.M. Phiri attested to on 16 February 2004 which speaks for itself. I represent Lt Col G.M. Phiri herein in my capacity as Senior Defence Counsel. I was instructed by Lt Col G.M. Phiri to request certain prescribed documents on behalf as an accused person in a criminal prosecution. This request was made by myself his behalf also in terms of both Sections 32 and 35 (3) of the Constitution of the public of South Africa, 1996 (Act 108 of 1996). Appendix 1-5 records the history of this request was conducted and the results thereof The conclusion reached in J,:_-,Japh 5 of Appendix 5 hereof is as follows: "5. In the light of the above the DoD respectfully stated that the Requester is not entitled to access the documents that he requested in terms of the Promotion of Access to Information Act, but should avail himself of the remedies provided for in the Rules of Procedure applicable in military courts made in terms of section 44(4) of the Military Discipline Supplementary Measures Act, 1999 (Act No. 16 of 1999) in order to get an appropriate relief." (Emphasis supplied). 3. The Director of Military Prosecutions is kindly requested to assist herein in terms of Rule 107 of the Rules of Procedure made in terms of section 44 (4) of the Military Discipline Supplementary Measures Act 1999 (Act No. 16 of 1999) and intervene with the office of the Chief of the SA Army, to release to the writer hereof as soon as possible documents listed in a document dated 26 September 2001 entitled "LIST OF REQUIRED DOCUMENTS FOR COURT PURPOSES" and is one of the annexures to Appendix 1 above. This request is also in line with the indication of the DoD Information Centre as more fully set out in paragraph 5 of Appendix 5 hereof. The court of Senior Military Judge during the hearing of the 27th ultimo also directed Senior Defence Counsel to seek the assistance of Director Military Prosecutions herein. 4. In the event the Director of Military Prosecutions is unable to assist ut-, in this matter it is my instructions to apply for an adjournment of this matter for the purpose of allowing Lt Col G.M. Phiri to seek the assistance of the High Court. For that purpose it will be necessary for Lt Col G.M. Phiri to apply for the state's legal assistance. In the premises it is our hope even at this stage that the relevant authorities will co-operate and the necessary documents be made available to the defence without embarking on the costly High Court route. 5. I may further add that it is also Lt G.M. Phiri's dfefence that he has been framed for reasons stated in Appendix 6 above. The documents requested, according to my instructions, are also intended to enable the said Lt Col G.M. Phiri to prove this particular defence. 6. Your assistance and co-operation herein will be highly appreciated. DISTR For Action Director Military Prosecutions PSO: Chief of the SA Army For Info (Attention: Brig Gen G.I. Slabbert) (Attention: Col C. de Klerk) The President of the Republic of South Africa as Commander-in-Chief of the Defence Force in terms of Section 202(1) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) Minister of Defence Secretary for Defence Chief of the SANDF CMLS DMDC Prosecution Counsel >Lt Col G.M. Phiri SA Army Headquarters (Attention: Capt T. van Schalkwyk)




Telephone: Facsimile: e-mail: Enquiries: (012) 355-5575
(012) 355-6241 info@mil.za
Dr W.G. Hendricks If
Department of Defence(Information Centre)
Private Bag X161 Pretoria
0001
/ July 2002
Col B.Q.P. Simelane Fax: 355-5372
NOTICE OF INTERNAL APPEAL: REQUEST FOR ACCESS TO RECORDS OF PUBLIC BODY: LT COL G.M. PHIRI
The above matter has reference.
2. The Requester's legal representative, Col. B.Q.P. Simelane submitted that criminal
proceedings in the proceedings in issue have not yet commenced as contemplated in section 7(1)(b) of the Promotion of Access to Information Act. •
The Military Legal Services has indicated that whereas the serving of the indictment is
-1- commencement of the criminal proceedings in terms of section 76(1) of the Criminal
i':.-:•ee-dure Act, 1977 (Act No. 51 of 1977), the arraignment of an accused person in terms of
29(2) of the Military Discipline Supplementary Measures Act, 1999 (Act No. 16 of 1999)
)ulci regarded as the commencement of criminal proceedings in a Court of
-1S.-_',7-Nlilitary Judge. The aforementioned section 29(2) of the Military Discipline
pplementary Measures Act, 1999 (Act No. 16 of 1999) provides as follows:
"Any person warned in terms of a rule of the Code in respect of an ofre.nce shall be brought before a militaiy court as soon as possible after receipt by adjutant of that person's unit or by a prosecution counsel of the written signed account of offence prescribed in a rule of the Code".
The DOD respectfully differ from the submission made by the Senior Defence Counsel
:- the Requester in this matter, Col. B.Q.P. Simelane, that "criminal proceedings in issue have
yet cormnelced as contemplated in section 7(1)(b) of the Act" for the reason that pone of the .,uthorities referred to above suggest that the pleading stage in criminal trials is regarded as the
rnencenient of proceedings both in the lower and superior courts]
In the light of the above the DOD respectfully stated that the Requester is not entitled to r.c.ccss the docUments that he requested in terms of the Promotion of Access to Information Act, 1-at should avail himself of the remedies provided for in the Rules of Procedure applicable in :.1i!itary courts made in terms of section 44(4) of the Military Discipline Supplementary Measures
1999 (Act No. 16 of 19 9) in order to get an appropriate relief

We trust that th

ove may be of some value.

GRIFFIER VAN DIE HOOGGEIRtalf0T. c A.
TRANSVAALSE PROVINSIALE PRIVAATSAK/PRIVATE BAG XC7
2005 -07- ,2 6
IN THE HIGH COURT OF SOUTHAERICPA„L?In
1-i/ANJW-1/41-11_ v lisa.,iAL DIVISION
[TRANSVAAL PROVINCIALPPMME SUPREMr. -COURT Of S..ti.

In the matter between:- CASE NO: P(-3

THE MINISTER OF DEFENCE FIRST APPLICANT
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE SECOND APPLICANT



GOODMAN MANYANYA PHIRI RESPONDENT
NOTICE OF MOTION
BE PLEASED TO TAKE NOTICE that the above-named Applicants intend to bring an application to the above Honourable Court for an order in the following terms:
1 An order that the First Applicant has fully complied with the Court
Order of the above Honourable Court granted on 23 March 2004 under case no: 7697/04.
2. An order declaring that the proceedings in the Military Court against
Lieutenant Colonel Phiri that were stayed in terms of the Court Order

mentioned in paragraph 1 above be allowed /ordered to continue and resume.
3. That the Respondent pay the costs of this application.
4. That the Court grant further and/or alternative relief.
AND TAKE NOTICE FURTHER THAT the affidavit of SEGOMOTSO BAILEY MMONO together with annexures thereto, will be used in support of this application.
TAKE NOTICE FURTHER THAT the Applicants have appointed the State Attorneys, Old Mutual Centre, 8th Floor, 167 Andries Street, Pretoria as the address at which they will accept notice and service of all documents in these proceedings.
TAKE NOTICE FURTHER THAT if the Respondent intends to oppose this application, he is required:
(a) To notify Applicants' attorneys in writing on or before the
day of /VA ettkc 2005;


(b) And within 20 (twenty) days after the Respondent shall have given such notice of his intention to oppose this application, to file his answering affidavit(s), if any;
(c) And further that Respondent is required to appoint in such notification an address referred to in Rule 6(5)(b) at which he will receive notice and service of all documents in these proceedings; and
(d) If no such notice of intention to oppose be given, the application will be
made on the day of At__ALL1 2005 at 10h00 or so soon
thereafter as Counsel may be heard.
1--"J
DATED AT PRETORIA ON THIS (;2-6-44- DAY OF JUNE 2005.

STATE ATTORN YS, PRETORIA APPLICANTS' ATTORNEYS
OLD MUTUAL CENTRE
8TH FLOOR
167 ANDRIES STREET, PRETORIA
PRIVATE BAG x91
PRETORIA, 0001
TEL: (012) 309-1541
FAX: (012) 328-
REF: 1235/2004/L10-Mrs A.G.F. MOKGALE
TO: THE REGISTRAR OF THE HIGH COURT,
PRETORIA

AND TO: Lieutenant Colonel GOODMAN MANYANYA PHIRI C/O DEFENCE INTELLIGENCE,
DEPARTMENT OF DEFENCE
THABA TSHWANE, PRETORIA

Received copLhereof on this the day of 2-0 2005
CAk_


IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
In the matter between:- CASE NO: (0 OS
THE MINISTER OF DEFENCE FIRST APPLICANT
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE SECOND APPLICANT
and
GOODMAN MANYANYA PHIRI RESPONDENT
FOUNDING AFFIDAVIT
I, the undersigned,
SEGOMOTSO BAILEY MMONO
do hereby declare on oath as follows:
1
1.1 I am an adult male Major General in the South African National Defence
Force ("the SANDF"), employed by the Department of Defence ("the
DOD") and am the Adjutant General referred to in section 27 of the
Military Discipline Supplementary Measures Act 16 of 1999 and holding

the post Chief Military Legal Services, stationed at the Military Legal Services Head Quarters in the Armscor Building corner of Delmas and Nossob Roads, Erasmusrand, Tshwane, Gauteng.
1.2 The facts and allegations deposed to in this affidavit are, unless otherwise
stated or the contrary appears from the context, within my own personal knowledge, information and belief and are both true and correct.
1.3 I have dealt with certain of the issues raised by the Respondent and I am
acquainted with the facts of this matter. The First Applicant and the Chief of the SANDF have authorised me to act for and on behalf of both Applicants in this matter.
2.
2.1 The First Applicant is the MINISTER OF DEFENCE, cited in his capacity
as the Political Head of the DOD.
2.2 The Second Applicant is the DIRECTOR, MILITARY PROSECUTIONS in the Department of Defence, who is cited herein in his capacity as the Director responsible for prosecutions in the Military Courts and who has a direct interest in all prosecutions against members of the SANDF.

2.3 The Respondent is GOODMAN MANYANYA PHIRI, a Lieutenant Colonel in the employ of the DOD, attached to Defence Intelligence.
PURPOSE OF THIS APPLICATION:
3.
The purpose of this application is to request this Honourable Court, among others, for a declaratory order declaring that proceedings in the Military Court brought against the Respondent should be proceeded with. It will become clearer hereunder as to the grounds upon which the Applicants rely.
BRIEF BACKGROUND TO THE APPLICATION:
4.
4.1 On 9 March 2001 the Respondent was arraigned to appear before a
Military Court. The charges that were preferred against him ranged from using threatening or insulting language, insubordination and disobeying lawful commands given to him by his superior. For the sake of completeness I annex hereto marked Annexure "SBM1" a copy of the charge-sheet. I invite the attention of this Honourable Court to the contents of the charge-sheet. May I, in passing, mention that these charges in the military culture and environment, are very serious.

4.2 For purposes of this application I do not deem it necessary to dwell deeply
into the whole circumstances and events that led to the Respondent being charged as aforestated. Suffice to mention that the charges were pursuant to some investigations done on the alleged conduct or acts attributed to the Respondent whilst he was attending courses at the SA Army College during 2001.
5.1 ON 23 March 2004 the Applicant brought an urgent application before this
Honourable Court, which was heard on the same day. In his founding affidavit the Applicant alleged that there was certain documentation or reports in the possession of the DOD to which witnesses in this trial had made reference. He alleged further that he had no sight to those documents and was consequently prejudiced because he was unable to effectively cross-examine those witnesses who had already testified.
5.2 I am informed that after a preliminary investigation report (which is
standard procedure) was conducted against him, the Applicant was handed, among others, the preliminary investigation report (referred to again as the certificate of investigation which was ordered by the then acting Commandant SA Army College. I will later hereunder revert to this and other reports.

PRAYERS CONTAINED IN THE NOTICE OF MOTION IN APPLICANT'S URGENT APPLICATION:
6.
6.1 For purposes of enabling the Applicant to deal efficiently with the prayers,
it is acutely necessary and proper to annex the relevant portion of the notice of motion to these papers. To this end I annex hereto marked "SBM2" a copy of the Respondent's notice of motion in the urgent application. I do not wish to be repetitive but will only refer this Honourable Court particularly to paragraph 4(a), (b) and (c) thereof. I will later hereunder deal seriatim with paragraph 4 thereof.
6.2 The Honourable urgent Court granted the Respondent's application by
granting prayers 2, 3, 4 and 6 of the notice of motion. In this regard I annex hereto marked annexure "SBM3" a copy of the Court Order. It is profoundly significant to draw the attention of this Honourable Court to prayer 2 of the notice of motion. This Honourable Court ordered a stay of the proceedings against the First Applicant (who was the First Respondent in the urgent Court) pending compliance, in particular, with prayer 4. In prayer 3 this Court declared that "the Applicant is entitled to have access to documents and/or information held by the First Respondent in exercising or protecting his right in a trial in the Military Court".

7.
The proceedings were indeed stayed pending compliance with the terms of the Court Order by the First Applicant. On 19 April 2004, the First Applicant (who was the First Respondent in the urgent application) through his attorneys, transmitted documents to the Respondent's attorneys. In this regard I annex hereto marked annexure "SBM4" a copy of a covering letter dated 19 April 2004 enclosing copies of the documents in compliance with the Court Order. I will immediately hereunder deal with each bundle of documents in accordance with the Court Order.
SOUTH AFRICAN ARMY INSPECTOR GENERAL'S REPORT INVOLVING PHIRI et al AT THE SOUTH AFRICAN ARMY COLLEGE: FEBRUARY TO MARCH 2001:
8.
8.1 Among the documents transmitted to the Respondent's attorneys was a
bundle named the South African Army Inspector General's report involving the Respondent and others. The response of the Respondent's attorneys is contained in a letter to the Applicants' attorneys dated 3 May 2004. For ease of reference I annex hereto marked annexure "SBM5" a copy of the said letter. The Inspector General's report bundle was referred to as Enclosure 1.

8.2 Ex facie the letter (SBM5) the Respondent states that the Report "is
incorrect". According to him what was sought in terms of the Court Order was "specifically the SA Army Inspector General's Report instigated by the SA Army College presiding General Moshoana, which report was finalized on the 6th March 2001". I wish to refer this Honourable Court to annexure SBM2 being a copy of the Respondent's urgent application, to which I earlier referred in paragraph 6.1. Paragraph 4(a) of the Respondent's prayers makes no mention of a report specifically "instigated by the SA Army College presiding General illoshoana...". With due respect to the Respondent, I see this as a blatant misrepresentation of facts.
8.3 In the letter dated 01 June 2004 Lieutenant Colonel Coetzee responded to
the Respondent's attorneys' letter (SBM5). I annex hereto a copy of the letter marked annexure "SBM6" to which I direct the attention of this Honourable Court. In paragraph 2(a) it is clear that it was not Brigadier General Mashaola who compiled the report. As a matter of correction I may also add that the Respondent's attorneys did not correctly spell the name Mashaola. Instead they referred to him as Moshoana which is incorrect. In fact the report was compiled by Colonel Mokalake.



9.
9.1 Lieutenant Colonel Coetzee explains that there was no transcript of any
witnesses' testimony because an Inspector General's report is a summary investigation and not a formalised investigation. After being furnished with the First Applicant's response, contained in letters dated 1 June 2004 (annexure SBM6) and 2 June 2004 from myself, the Respondent's attorneys reacted. I will later deal with the reaction. I now wish to annex a copy of my letter dated 2 June 2004 which is marked annexure "SBM7".
9.2 I categorically invite this Honourable Court's attention to paragraphs 2 and
4 thereof. I indicated in paragraph 2 that my office made concerted efforts to determine whether or not there were outstanding documents as alleged in the Respondent's attorneys' letter dated 3 May 2004 (SMB5). I also proposed a round table conference between our attorneys and the DOD as well as the Respondent's attorney in order to resolve this matter as speedily as possible. I will later in these papers refer to this meeting.
9.3 I now revert to the Respondent's reaction to both annexures SBM6 and
SBM7. I annex hereto marked annexure "SBM8" which is a copy of a letter from Respondent's attorneys dated 5 July 2004. The attorneys contend that the DOD "evades providing our client simply with the documents stipulated by the High Court Order". This statement is preposterous, to say the least. In paragraph 2.1 the Respondent is seeking and insisting on "Brigadier- General Mashoala's Investigation Report concluded on the 06 the March 2001"...[(to the reader of this post, Blogger's elucidation on this Mashoala character, please check the yellow highlight to be found here)].... I reiterate that, that report was not compiled by Brigadier General Mashaola as already stated by Lieutenant Colonel Coetzee in annexure SBM6. The explanation for that is given by Colonel White in an affidavit he deposed to on 20 September 2004. Without been seen to be unnecessarily burdening these papers, I deem it important that that affidavit be annexed hereto. I do so and mark it annexure "SBM9". I specifically draw this Honourable Court's attention to paragraphs 1(a), (b) and (i) of the affidavit. I do not wish to repeat the contents of these paragraphs. Suffice to mention that it was Brigadier General Mashaola who instructed Colonel White and Colonel Mokalake to investigate the Respondent's grievances.
9.4 On 28 February 2001 Colonel White wrote a memorandum to Colonel Mokalake for purposes of compiling the SA Army Inspector General's report. I annex hereto marked "SBM10" a copy of the relevant portion of the said memorandum.
10.
10.1 The DOD contends therefore that it is not evading providing the Respondent with "documents stipulated by the High Court Order". When one looks at the Court Order with an incisive eye it does not make mention of

"witnesses statements" or that the report must be one compiled by Brigadier General Mashaola. The Court Order states that it is a report "... involving Phiri et al at the South African Army College February to March 2001". What involved "Phiri et al" at the College was exactly what was provided to the Respondent in Enclosure 1. The said enclosure contained the following Appendices:
(a) Redress of Wrong Letter CMS1/C/106/29.
(b) Lieutenant Colonel Phiri's Explanation Letter.
(c) Redress of Wrong against Commandant of the SA Army College dd 08 March 2001.
(d) Redress of Wrong Letter against Brigadier General E.M. Mashoala dd 06 March 2001.
(e) Incident Report on Lieutenant Colonel GM Phiri.
(f) Response Letter by Colonel B. Kleynhans.
(g) Irregularities in the Junior Branch: Course 701 G37 200002 dd
February 2001.

(h) Milestone two and three Speech.
(i) Incident Report: The colonel's blue-eyed boy.
(j) Copies of Orders before the OC.
10.2 Due to the bulky nature of Enclosure 1 and the other enclosures, it will be over-burdening these papers if they are annexed hereto. I have been advised that the best way will be to bind them together and paginate them separately for reference purposes. This is done to enable this Honourable Court to see documentation and/or reports given to the Respondent in terms of the Court Order.
10.3 In annexure SBM9, being the affidavit of Colonel White, she mentions in paragraph 1(d) that the following week when Colonel Mokalake visited the students at the SA Army College only one letter was received from a group of concerned white students. In annexure SBM8, the Respondent's attorneys requested the DOD to `fiirnish us with the documents on grievances laid by course members before Brigadier-General Mashoala during his investigation concluded on the 6th March 2001 ". According to Colonel White the grievances were contained in only one letter signed by a group of white students [paragraph 1 (d) and (o) of SBM9].


10.4 Lieutenant Colonel Coetzee from our Legal Advice and Litigation Section at Legal Satellite Office Thaba Tshwane wrote to me on 11 August 2004 explaining that the letter from the white grouping could not be found. I annex hereto marked annexure "SBM11" which is Lieutenant Colonel Coetzee's copy of the covering sheet. I direct this Honourable Court's attention to paragraph 3 thereof. Accompanying SBM11 was a memorandum from Colonel White to Lieutenant Colonel Coetzee dated 11 August 2004. I annex a copy thereof marked annexure "SBM12". I specifically refer the Court to the contents of paragraph 4 thereof, which are self-contained.
SUDDEN TWIST OF EVENTS: ALLEGED MINISTERIAL INVESTIGATIONS:
11.
11.1 Whilst focus was directed at the alleged non-compliance of the Court Order by the DOD referred to in letters by the Respondent's attorney, our attorney received a letter dated 12 July 2004 from the Respondent's attorneys. I annex a copy of the letter marked annexure "SBM13" to which reference was made to a letter written to the Respondent's attorneys by Colonel Simelane. I also annex a copy of the latter letter

dated 9 July 2004 marked annexure "SBM13A". The Respondent's attorney was requesting our attorneys to respond thereto.
11.2 In paragraph 2 of annexure SBM13A Colonel Simelane (Senior Defence Counsel for. Respondent in the Court of the Military Judge) mentions that he drew the attention of the Military Judge to the fact that the matter of Respondent was also investigated at ministerial level. To me this is a sudden twist of events because in the Respondent's urgent application no mention of any ministerial investigation was made. Colonel Simelane is bold to mention to the Respondent's attorneys that "Col Magxwalisa of the Minister's office also confirmed the investigations being undertaken by the Minister's office and that the relevant report on the SA Army College's racial conflict were being sought from the organs concerned" .
11.3 According to him he was objecting to the matter before the Military Court being proceeded with before the Minister's report had been made available to the Respondent and himself. He attached a letter dated 7 December 2001 signed by Colonel Magxwalisa. A copy of that letter dated 7 December 2001 is annexed hereto marked annexure "SBM14A". With all due deference to Colonel Simelane, the letter by Colonel Magxwalisa to the Respondent merely acknowledged receipt of the Respondent's letter he had written to the Minister of Defence. There is no suggestion by Colonel Magxwalisa that the Minister was undertaking investigations and



that the Respondent would receive an answer to those investigations. The content was to the effect that the matter is receiving attention and the Respondent would be given an answer in due course. As a matter of buttressing this contention, I annex hereto marked "SBM14B" a copy of Colonel Magxwalisa's affidavit clarifying the position.
11.4 In the event that the Minister has undertaken any investigations and a report is available, same would be furnished to all interested parties. Having said that however, I wrote a memorandum dated 5 November 2004 to the Chief of the SANDF to which a draft response to the Ministry of Defence was attached requesting the Ministerial Report, if any, is available. I received a response from the Ministry of Defence dated 31 January 2005 to the effect that such a report does not exist. I annex hereto a copy of the memorandum and response marked annexures "SBM15A" and "SBM15B" respectively. The contents of annexure SBM15B are self-explanatory and need not be taken any further.
12.
Colonel Mokalake also confirmed in an affidavit that the only report available was Enclosure 1 mentioned in these papers and no other. It is not necessary that I annex the Colonel's affidavit because he has confirmed what I say in a confirmatory affidavit.

13.
May I hasten to mention that in terms of the Court Order no Ministerial Report was ordered to be handed to the Respondent. I make mention of the issue on the Ministerial Report because it was brought to the attention of our attorneys for a response.
THE COMMANDER'S INVESTIGATION REPORT AS ORDERED BY ACTING COMMANDANT OF THE SA ARMY COLLEGE COLONEL. EDWARD FRANCE DROST TO LOOK INTO COMPLAINTS AGAINST LIEUTENANT COLONEL PHIRI; MARCH 2001:
14.
14.1 This was contained in prayer 4(b) of the Court Order. It is Enclosure 2 of the documents furnished to the Respondent. The latter had no problem with this enclosure in terms of what is stated in paragraph 2 of annexure SBM5 in the Respondent's attorneys' letter of 3 May 2004. This issue should therefore not detain this Honourable Court any further.



14.2 The Respondent was also given additional information and/or documentation contained in Enclosure 3. There was no request for this information. No dissatisfaction was raised by the Respondent in this regard. It can safely be assumed that he is contend therewith.
15.
THE B. MATT INTERVENTION REPORT-INTERVENTION AT THE SA ARMY COLLEGE — JANUARY/FEBRUARY 2001 BY THE BRITISH MILITARY ADVISORS TO SA NATIONAL DEFENCE FORCE:
15.1 The Respondent, in accordance with what is contained in annexure SBM5, complains that the report (referred to as Enclosure 4) " ...is truncated and incomplete as it lacks the deliberations by our client and the Board's response...". The Respondent, through his attorney, contends "that deliberations were made by himself and also by members of the Board meeting (comprised of SANDF and British Defence Force officers)". In this regard I wish to refer this Honourable Court to paragraph 2.2 of annexure SBM8 mentioned in paragraph 9.3 above.
15.2 The Board meeting was held on 30 January 2001. The secretary of the

11 August 2004 to the effect that no minutes were taken of that meeting. I deem it profoundly important and necessary that her affidavit should be annexed hereto for purposes of clarifying how the process was run. I annex hereto a copy of the Lieutenant Colonel's affidavit marked annexure "SBM1 6".
15.3 I again take this Court a little backwards to annexure SBM6 mentioned in
paragraph 8.3 above. Lieutenant Colonel Coetzee, in paragraph 2(b) of annexure SBM6 states clearly that no "deliberations were minuted ...". In terms of the Court Order the Respondent required the B.Matt intervention report. He has been informed that "No B. Matt Intervention Report exists, only a JCSD Assessment Board. B.Matt did not have any intervention authorization/mandate bestowed on them". [see paragraph 2(b) of annexure SBM6].
15.4 The Respondent persists that there were minutes taken at that meeting by Lieutenant Colonel De Ville Lourens. The Court ordered the B.Matt Intervention report to be given to him. However, such a report does not exist. Instead, the Respondent was provided with the minutes of the Board meeting which he is dissatisfied with.

15.5 I must mention that two British Officers were present in that Board meeting. An assessment of the Respondent was made and this appears in appendix B1 to the minutes. The Respondent, in appendix B2, under item 6. "Comments by OUI" , he comments as follows: "All reservations I had were expressed during the meeting. Am honoured to get a second chance". Now he says there were "deliberations" made between himself and members of the Board. It baffles me why he would want to have "deliberations" when he says he is honoured to have been given a second chance. The "deliberations" he says he wants is not the B.Matt intervention report as ordered by the Court.
15.6 To this end therefore, it is the contention of the DOD that it has fully complied with the Court Order. In fact additional (not requested) information was supplied to him in the form of enclosure 3. This latter enclosure contains, among others, the incident report relating to the incidents that led to the charges he is facing in the Military Court.
16.
I refer this Honourable Court to a separate index of paginated bundles containing all the four enclosures.

RELIEF SOUGHT:
17.
17.1 The Applicants consequently request this Court for the following relief:
17.1.1 To declare that the First Applicant has fully complied
with the Court Order of this Honourable Court dated
23 March 2004(annexure SBM3).
17.1.2 That the proceedings in the Military Court against
Lieutenant Colonel Phiri that were stayed in terms of the Court Order mentioned above be allowed/ordered to continue and resume.
17.1.3 The above Honourable Court should order the
Respondent to pay the costs of this application.
17.2 It is important to mention that proceedings in the Military Court should be allowed to be finalised as soon as it is practicably possible. The Respondent's first appearance in that Court was in March 2001 and to date the matter has been stalled because of the urgent application brought by the Respondent. This state of affairs is highly undesirable and this


Court is asked to intervene. Efforts were made to resolve the impasse with the Respondent and his attorney on 21 September 2004 in a meeting requested by my office but to no avail. An amicable solution could not be reached.
17.3 I also need to deal with paragraph 2 of the Court Order (annexure "SBM3"). The Court ordered that if the Respondents (in the urgent application) wished to withhold any of the information or documentation sought, that the Respondents should specify such documentation or information. The First Applicant herein and the other Respondents (in the urgent application) did not withhold any documentation from the Respondent. It was therefore not necessary to specify any documents or information which was withheld, because none was withheld as stated already.
17.4 According to the content of paragraph 2 of the order, the First Applicant was supposed to "prove special grounds" at the recommencement of the hearing at the Military Court why the documents should not be furnished to the Respondent. Further legal argument will be presented by the Applicants' Counsel at the hearing hereof.


18.
I refer this Court to confirmatory affidavits annexed hereto as a matter of buttressing this application.
WHEREFORE I pray that it may please this Honourable Court to grant the relief sought in the notice o f motion.

THUS SIGNED AND SWORN TO BEFORE ME AT EZW(DcagdON THIS THE ,2_5—t4 DAY OF MAY 2005, BY THE DEPONENT HAVING ACKNOWLEDGED THAT HE KNOWS, UNDERSTANDS AND HAS NO OBJECTIONS TO THE CONTENTS OF THIS AFFIDAVIT. HE CONSIDERS IT TO BE CORRECT, TRUE AND BINDING ON HIS CONSCIENCE.

A
. 19/11/0i 14:4U tAA. viz JJ1Z1bl, LLAIOA1V 41 SAW,'

CHARGE SHEET
No: 98007693PE
Rank: ,LT COL
Name: Goodman Manyanya Phirl
Corps: SAIC
Unit: SA Army Defence intelligence
(hereinafter referred to as the accused) who is subject to the Military Discipline Code in terms of Section 104(5)(a) of the Defence Act, Act 44 of 1957, as amended, and Section 3(2)(a) of the Military Discipline Supplementary Measures Act (MDSMA), Act 16 of 1999, is charged with the following offence (s):
FIRST CHARGE
Contravention of Sec 17 MDC (Using threatening,Insubordinate or Insulting language )
In that on or about the 6' day of February 2001 and at or near Pretoria, the said accused unlawfully and intentionally used threatening language and/or behaved with contempt and/or displayed insubordination towards his superior officer, being No 775160(33 PE Col Jan Hendrik Beyers Kleynhans, the Chief lnstructor,of the Junior Command and Staff Duties Course 2t SA Army College by saying to the said Col Kleynhans that he, the accused does not agree with the way the Colonel does his job and replying to the said Colonel : I am fucking telling you that!
First alternative to the first charge
dvention of Sec 4-6 (Conduct Prejudicial to Military Discipline)
In that on or about the day of February 2001 and at or near Pretoria the said
accused unlawfully and intentionally or negligently caused actual or potential prejudice to the good order and military discipline, by saying to the said Col Kleynhans that he, the accused does not agree with the way the Colonel does his job and replying to the. sold Colonel : • I am.fucking telling you that!'
Second alternative to thv first charge
Con dven-tion of Sec 45(a) Pri DC (Riotous or unseemly behaviour)
In that on or about the eu" day of February 2001 and at or near Pretoria the said
accused unlawfully and in;entonally or negligently behaved in an unseemly manner,
in that by saying to the said Col Kleynhans that he, the accused does not agree

11/01 14:49 FAX 012 3512190 LEGSATO TT PROS _a03
with the way the Colonel does his job and replying to the said Colonel ' I am fuoldng telling you that!'
SECOND CHARGE
Common Law CrImen Iniuria read with Section 56 MDC
In that on or about the 06th day of February 2001 and at or near Pretoria the said accused unlawfully_ and intentionally said to No 77516003 PE Col Jan Hendrik Stayers Kleynhans, the Chief Instructor of the Junior Command and Staff Duties Course at SA Army College "You are a racist, and I hate racists' or words to that effect, with intention to impair his dignity and whereby his dignity was impaired.
First alternative to the second charge
Contravention of Sec 17 MDC (Using threatening,insubordinate or Insulting language )
In that on or about the 6th day of February 2001 and at or near Pretoria, the said accused unlawfully and intentionally used threatening language and/or behaved with contempt and/or displayed insubordination towards his superior officer, being No 77516003 PE Col Jan Hendrik Beyers Kleynhans, the Chief Instructor of the Junior Command and Staff Duties Course at SA Army College by saying to the said C.-01 Kleynhans that 'You are a racist, and I hate racists' or words to that effect. •
Second alternative to the second charge
Contravention of Sec 46 (Conduct Prejudicial to Military Discipline)
In that on or about the e day of February 2001 and at or near Pretoria the said acci ised unlawfully and intentionally or negligently caused actual or potential prejudice to the good order and military discipline, by saying to No 77516003 PE Col Jan Hendrik Sayers Keynhans, the Chief Instructor of the Junior Command and Staff Duties Course at SA Army College that : 'You are a racist, and I hate racists' or word to that effect.
Third alternative to the second charge
Contravention of Sec 45(a) MDC (Riatotn or unseemly behaviour)
In that on or abort the 61" day of February 2001 and at or near Pretoria The said accused unlawfully and intentionally or negligently behaved in an unseemly manner, in that by saying to No 77516003 PE Col Jan Hendrik Beyers Kleynhans, the Chief Instructor of the Junior Command and Staff Duties Course at SA Army College that You area racist, and I hate racists" or words to that effect

THIRD CHARGE
Contravention of Sec 14(b) MDC (Absence without leave and non-attendance where required to attend.)
In that on or about the 6'1 day of March 2001 and at or near Pretoria, the said accused unlawfully and intentionally or negligently and without good and sufficient cause left his place of duty to wit, SA Army College
FOURTH CHARGE
Contravention of Sec 14(b) MDC (Absence without leave and non-attendance where required to attend.)
In that- on or about the r" day of March 2001 and at or near Pretoria, the said accused unlawfully and intentionally or negligently failed to appear at a place of duty to wit, SA Army College at 08:00.
FIFTH CHARGE
Contravntion of Sec 19(2) MDC (Disobeying lawful commands and orders)
In that on or about the 7th th day of March 2001 and at onnear Pretoria, the said accused did unlawfully and intentionally or negligently disobeyed a lawful command given in the execution of his duties by his superior officer, being No 76532951 PE Col Edward Frans Drost Acting Commandant SA Army College, in that the said accused must furnish the said Col Drost with a letter of explanation on the 080800E1 March 2001 regarding the said accused whereabouts on the 6m and 7th day of March 2001 whereby the said accused failed to do so.
SIXTH CHARGE
Contravention of Sec 17 MDC (Using threatening,insubordinate or Insutting language )
In that on or. about the 7th day of March 2001 and at or near Pretoria, the said accused unlawfully and intentionally behaved with contempt and/or displayed insubordination towards. his superior officer. being No 76532951PE Col Edward Frans Drost, Acting Commandant SA Army College by not addressing the said Colonel on his rank, and/or answering the said Colonel in a shouting tone of voice and/or arrogant manner and/or leaving the desk of Col Drost without saluting, saluting to the .door and! or giving Col Drost a command to salute the accused, and/or shouting at the said Col Drost 'Okay, you don't want to salute me" or words to that effect

First alternative to sixth charge —
Contravention of Sec 46 (Conduct Prejudicial to Military Discipline)
In that on or about the r day of March 2001 and at or near Pretoria the said accused unlawfully and intentionally or negligently caused actual or potential prejudice to the good order and military discipline, by not addressing the said Colonel on his rank and/or answering said Colonel in a shouting tone of voice and/or arrogant manner and/or leaving the desk of Col Drost without saluting, saluting to the door, giving the said Col a command to salute the said acwsed, and/or shouting at the said Col Drost 'Okay, you don't want to salute me' or words to that effect
Second alternative to sixth charge
Contravention of Sec 45(a) MDC (Riotous or unseemly behaviour)
In that on or about the 7th day of March 2001 and at or near Pretoria the said accused unlawfully and intentionally ornegligently behaved in an unseemly manner, in not addressing the said Colonel on his rank and/or answering said Colonel in a shouting tone of voice and/or arrogant manner and/or and/or leaving the desk of Cal Drost without saluting, saluting to the door giving the said Col a command to salute the said accused, and/or shouting at the said Col Drost 'Okay, you don't want to salute me” or words to that effect
ONO
DATE
THA)
SENIOR PROSECUTION COUNSEL

3C-I-7-1; •
114

IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL, DIVISION]

U B R:

1e I z. bPt‘-veen:,
Al\FIVI.ANYANYA PHIRI
• - •
NISTER OF DEFENCE
SECRETARY FOR DEFENCE CHIEF: OF THE SOUTH AFRICAN oNAL:tiEtENCE FORCE
CHIEF' OF THE S A ARMY
,JOR H S PRETORIUS
• ,.6NEL A A VENTER

NOTICE OF MOTION

IDLY TAKE NOTICE that the abovementioned Applicant intend4,to application to the above Honourable Court on
..con thereafter as counsel may be heard feir an Order in the foirt*ilo,

That the forms and service provided for in terms of the R1.4:s of the ,above
HondUrable Coilirt be dispensed with insofar as it i'i:1,91/ be nee:&sory and the
•
atiplicatiOrjbe heard as one of urgency in terms.af Uniform Fif4le 6(12)1 .

LT COL G M PHIRI be stayed pending the orders prayed for u6der prayer 3 4;
order declaring that the Applicant is entitled to havO :access to documents and/or information held by the First Respondent, 'alternatively, Fifth Respondnt in the Applicant's exercising or protecting his.r'ight in a trial PerKling in the Military Court;
4 That the Fifth Respondent alternatively, Fifth Respondent bc: ordered and
directed to furnish Applicant with the following documents na--:Trte,Ty:
(a) South African Army Inspector General's report involvir4-Phi i et iitat.
the South African Army College; February to March 20Q1;
(12): The Commander's investigation report as orclared.., by acting Commaclant of the S A Army College Colonel Edward France Dro.st to look into complaints against Lt. Col. Phiri; March 201;
(01 The B Matt intervention report (intervention at the S A AfIliy College
. January/February 2001 by the British Militery.advisor.il ti „ Nat4chal.
Defence Force,
.:„ 7 d yS Of the date of the Court order.

Qranting the Applicant such further or alternative relief as this.court deems fit;
Ordering that the First Respondent pays the costs of this application.
NOTICE FURTI-IER that annexed affidavit of GOODMAN MANYANYA HMI annexures referred to therein will be used in support of this application,
,KE NOTICE FURTHER that the Applicant has appointed Msiza Attorneys, 3rd Suite 335, Standard Bank Chambers, Church Square, Pretori ;.telephone
-,ber (012) 326-5346, cell phone number: 082 965 0716, AttentiOn: Joe Msiza attorneys at which he will accept notice and service of all pro-ess in these
ings.
IDLY TAKE NOTICE that if you intend opposing this application you are required:
(a) to notify the Applicant's attorneys in writing or by telephone on Tuesday, 23 March 2004 by not later than 11:00; and
(b) to deliver your answering affidavit, if any, by not later tl an 13,00.


IN THE HIGH COURT OF SOUTH-AFRICA [TRANSVAAL PROVINSIOL DIVISION)
On 23 March 2004
Before His Lordship Justice Claas.sen
i • ..
CASE 7697/2004
In the 'matter het-weeo:
PHIRI APPLICANT.'..
V
THE MINISTER OF DEFENCE t 5 1" RESPONDENT
.'. • • •

• ..

DRAFT ORDER .

After hearing counsel and after having read through the papers; .
COURT ORDERS AS FOLLOWS:
1) Order made in terms of Prayers 2, 3, 4 and 6 of the notice of
motion. • • • •;.
) It's further ordered that if the respondents wish•o withhold
any of the information or documentation sought, that such be specified to the applicant and the respondent Shall at the recommencement of the hearing prove'special giOunds. why
• the material should not be furnished to the appliearit,
. • .
. ^ '
Registrar

Office of the State Attorney
Pretoria

Fedsure Forum Building Private Bag X91
4th Floor Pretoria
South Tower 0001
268 Van der Walt Street Docex: 298
Pretoria 0002
Tel: +27 12 310 2788
E-Mail: stattptaamweb.co.za +27 12 310 2884
Fax: +27 12 322 6569
+27 12 322 0177
E-Mail:
Enquiries: MRS A G F MOKGALE Fir (012) 310 2834 19 April 2004
My Ref 1235/2004/L10 Your Ref: MSIZA/P027
Msiza Attorneys
3rd Floor, Suite 335
Standard Bank Chambers Church Square
PRETORIA 0002
Sirs
C M PHIRI/THE MINISTER OF DEFENCE AND 5 OTHERS The above matter refers.
Enclosed herewith please find copies of the following documents;
.SA Army Inspector General Report C ARMY/IG ARMY/R/506/2/6 dated 25 June 2001 (Enclosure 1)
.Certificate of investigation 05/2001 S A Army College dated 06.March 2001 (Enclosure 2)
S A Army College JCSD Branch Orders in respect of Lt Col G M Phiri (Enclosure 3) . Minutes of the JCSD Assessment Board meeting dated 30 January 2001 (Enclosure 4)
The delay in submitting the abovementioned is greatly regretted. Yours truly,
AGF MOKGALE
FOR STATE ATTORNEY ; PRETORIA



RESTRICTED "3811 6 "
LEGSATO TT/R/106/15

Telephone: SSN:
Facsimile: Enquiries: (012) 351 2130
802 2100
(012) 351 2165
Lt Col J.H.P. Coetzee LEGSATO Thaba Tshwane Private Bag X1044
Thaba Tshwane
0143
01 June 2004

Chief Military Legal Services Private Bag X159
Pretoria
0001
(Attention: Brig Gen S. B. Mmono)
LT COL C.M. PHIRI V MINISTER OF DEFENCE
1. Your letter CMLS 1/R/106/15 dated 21 May refers with letter Msiza /P027 dated 03 May 2004 attached thereto.
2. The following bears relevance to letter Msiza/P027 dated 03 May 2004:
a. Ad paragraph 1: Brig Gen. Moshoana only invited the course
members at SA Army College to lay their grievances in writing on the table. Lt Col Phiri forwarded a Redress of Wrongs in this regard with the grievance directed, to Brig Gen Moshoana, ie that he was not afforded the opportunity to state his grievances. As a result thereof, Col S.O. Mokalake then compiled the Inspector General's report on the matter. No transcript of any witnesses' testimony in this regard exists. An I se for eneral's report is an • icer Co - • mmary
not a formalised investigation. Matters are investigated bmo conversations/interviews etc. No formalised statements are recorded. Thereafter a recommendation is made whether or not a formalised investigation is to be conducted. Several pages containing the grievances of Lt Col Phiri forms part of the 1G Report C ARMY/IG/R/506r216 dated 25 June 2001 that was already furnished by this office, in fact, it comprised most of the report.
b, Ad paragraph 3: Lt Col Phiri is fully aware that no "deliberations"
were minuted in this regard. He had the opportunity to comment in writing as per B-2 thereof. No LS Matt Intervention Report" exists, only

RESTRICTED
a JCSD Assessment Board. B Matt did not have any intervention authorization/mandate bestowed on them.
3_ A Court of a Senior Military Judge postponed the military hearing of Lt
Col Phiri to 06 July 2004, Court A, Thaba Tshwane. It is therefore of importance that this matter wrt requested documentation be finalised asap so as to allow the military court proceedings to ontinue,
4, It is trusted that the abovementioned would suffice.
mop (LT COL J.H.P.COETZEE)
GENERAL OFFICER IN CHARGE LEGSATO INABA TSHWANE: BRIG GEN
DISTR
Internal
File LTURJ106/15

Telephone: (012) 355 5360 Facsimile: (012) 355 5372 Enquiries: Brigadier General S.B. Mmono Department of Defence
Military Legal Services Division Private Bag X159
Pretoria
0001

2 June 2004
Office of the State Attorney (Attention: Ms A.G.F. Mokgale) Private Bag X91
Pretoria
0001
LT COL G.M. PHIRI V THE MINISTER OF DEFENCE Appendix A: Letter LEGSATO TT/R/106/15 dated 1 June 2004
1. The above matter refers.
2. Subsequent to your facsimile with reference 1235/04/236 undated, a concerted effort was made by this office to determine whether or not there are outstanding documents as alleged in Msiza Attorney's letter dated 3 May 2004.
3. Feedback received from the relevant authorities is that, to the best of their knowledge, there are no documents or information which is being withheld from the Applicant. See Appendix A-
4. In the event the Applicant's attorney is still not satisfied with our response, it is suggested that the office of the State Attorney should arrange a meeting between the Applicant's attorney and Department of Defence, in order to resolve this matter speedily before the next military hearing of the Applicant on. the 6 July 2004.
5. For your further action.

Ekt S.B. MMONO)
LEGAL SERVICES: REAR ADMIRAL

SEM/DP(PHIRIVERSUSMJNDEF)

i1/41 8 'S
MSIZA
ATTORNEYS

3" FLOOR, SUITE 335
STANDAD BANK CHAMBERS CHURCH SQUARE
PRETORIA, 0002
s-MAIL: joeinsizaqteikomia.net
P.OBOX 14004 THE TRAMSHED
0126
TEL: (012) 326 5346
TELEFAX: (012) 326 SS4G CELL: 082 737 2010

Portricr: 6..1.M512A LLB.(uP)
TELEFAX TRANSMISSION; DATE: 05 JULY 2004
The information crintaind in this facsimile is solely intended for the named recipient/s only. It may contain privileged and confidential information and if you are not the intended recipient. and you have received this facsimile by error; you must not copy, distribute or take any action In reliance on it
TO : STATE ATTORNEY, PRETORIA TELEFAX NO: (012) 322 0177
FROM Mr. Msiza TOTAL PAGE (5) : 02 Inclusive.
YOUR REP :123512004/L10
OUR REF MSIZA / P027
Dear Sirs / Modem
LT C.M.PHIRI MINISTER OF OFFENCE
1. We refer to the above matter and to your telefax received on the 8th June 2004 as well as our
telefax dated the 14th June 2004.
2. Our instructons are as follows:
It 15 elpar that the Department of Defence evades providincLour client simply with the documents rvip
-.."..-
stioulated by the High Court Order:
2.1.
Instead, grievances relating to that specific report by our client, dated the 25d' June 2001, Brigadier General Mashoala's Investigation Report concluded on the 06 March 2001.
are furnished to us. It is our client's contention that the Department wishes us to believe that there are no transcripts of any witnesses in the Masnoala report which implicates our client. If so, the grievances laid by the course members in writing to Mashoala are exactly what is sought In terms of the High Court Order, which to date we have not been
furnished with; and our instructions are that they form the core of the allegations against our client In the Court of Senior Military Judge.
2.2. Regarding Enclosure 4 ( B MATT Intervention report/Minutes of JCSD ASSESSMENT
BOARD mEt ii-NG held on 3015158 JAN 01 IN BASTION, SA ARMY COLLEGE)._aur..client rnntAnds that deliberations were made b■li hitriselfAnd:alSoby•-tpontor5tth7e.EidaTrd meeting (comprised of SANDF and British DefrgrislECY5e351E4eMi"/;;;fici-:33;-97
ayi -07- 0 5
PREITOR;A
TA z

05/07/2004 15:55 01232E5346 MSIZA ATTORNEYS PAGE 02
t
When a secretary was present at that meeting by the name of It Col E. de V. Lourens, our dient does not accept that tne were no minutes taken during the deliberations.
3. It is therefore, on the aforegoing, our instructions that the meeting envisaged between uurselye and the Department would not serve any purpose as It can be gathered from your clients' correspondence that the documents sought by our client ""do not exist". However, please furnish us with the documents on grievances laid by course members before Brigadier General during his investigation concluded on the 6 March 2001.
4. We await your response.
Yniirs Faithfully MSIZA ATTORNEYS
Per: S.J. MSIZA


-°I.SEP-2004 11:44 FROM:IG ARMY 3551356 TO:*03512165 P:2

5BN 9"
RESTRICTED 1
AFFIDAVIT
1. I, 800113458pE Cpl H.M.White, SSD inspections at the office of the Inspector
General Army hereby declare the following cm the situation that led to the involvement of the ICS Army personnel in the Phiri case:
a. I and a fellow eolleague Col Mokalake was instructed by the then 1G Army
(Brig Gen Mashoala) during 2001 to accompany him to the SA Army College to investigate an alleged racial disharmony situation at the Junior Command and Staff Course,
b, Brig Gen feashoale Introduced us to the students and he addressed the
students for a few minutes, where he invited them to put their grievances or problems cm paper and provided that to me and Col Mokalake(who would be the investigating officers).
o. The letters would be picked up by me or Col Mokalake the next week and
we would be available in person to address issues if students want to come forward.
d. Col Mokalake went the next week to the SA Army College to pick up the
letters from students if there was any after which we would start with an investigation. On arrival only one letter were received from a group of concerned white students,
e. Another chance was given to the students to address their concerns to the investigating officers but nothing came out of that.
f. I and Col Mokalake went the next week to the SA Army College to address students in an individual manner to try to obtain information that would have led to the racial disharmony on the course. We decided to draw at random students and interview them, which we did. I obtained a namellat of the students on course from the course leader. we were situated in the Dan Pienaar Building In the Bastion conference room.

RESTRICTED 3
related to the course, According to them he had other motives and was quite political orientated instead of concentrating on related course aspects. I can't remember whose narnets were on the document if any, or if it was signed.
2. This Is all I wish to declare,
3. In reply to questions put to me by the commissioner of oaths, I also declare that
a. I know an understand the content of the above declaration
b. I have no objection to taking the prescribed oath, and
c. I consider the prescribed oath as binding on my conscience.
4 Thus declared and signed by me a pror)oufcing the prescribed oath on the
day of-krdey-4c0-12004 at F:

5. I certify that the deponent has acknowledged before me that she knows and
understands the conlRnt of this deciarat190. Thus ackrwiedged, sworn and signed befoo.une on,the 040 , day of 2004 at
..... t".4.k-70,C113.
A"I“.
EX *' CIO COMMONER OF OATHS
I name of commissioner of
Oath in his/her awn printed handwriting //6A/Ocy /caw

Business address of commissioner of Oath in his/her own printed handwriting
Rank and Arm of the Service of a commissioner oaths appointee ex officio A-04/
of
COI..0Afeki 6.4r /141/
•••■•■41,“ .. 4


11-AUG-2004 08:33 FROM:IG ARMY 3551356 TO:*Z3512165 P:P
SE•H 10's


RESTRICTED

MEMORANDUM

Telephone.; 3551600
Enquiries : Col H.M. White at' February 2001

From ; Col H.M. White To : Col 8.0.'M4kalaks
INVESTIGATION t SA ARMY COLLEGE : JCSC

1.- The following inputs are given to you far the compiling of your report to the IG iro the
above investigation,
EINSIINQS.
2, After interviews with students It came out vary clearly that the raised racial tension Issue
is not the problem experienced on the course.
3. Tho following issues came to light as the cause of the problem
cl.LN ‘.t."-IT•c0c 1.4.1L„),"4:1 114c06kQv414A
a. Students did and do not follow channels ty..,k.)40&14 \ tA••4
40,100:1Aroscuk.J.,\
b. Students did not address issues which officially either through the course committee or bmo official concerns via channels to the Course Leader, CI or
• Commandant of the College
c. The course committee did not address issues of common purpose to all students•
d. Own interests Are eought after by the course chafrrnan(personal virtdettars)-,
apparent political slogan's where used in his Speeches.
e, Course chairman speeches did not address common purpose for all students
f. ;Students want to be dealt with on an Adult approach but did not follow art adult
approach in dealing with their own problems.
White students withdrew WO the selection of the course committee, which could have had an influence on the solving of their pntlems, If they were part of the committee, to see that issues are addressed.
h. The course chairman think he instituted the issue of exam numbers end languge
Thls is a procedure implemented a very tong time ago, exam No exists fi iit the early 1900's and language poilicy instituted during 1994.
I. Same students questioned the integrity of IPM, the institution is a professional
institution and are called in by the SA Army college for each course to facilitate Grow forming and the selection of the Course Committee,
J. 'Mete are two small groups(one white and one black) within the large students
grfiL.0 who try to make it difficult for all students on course, Each one of these

RESTRICTED
k
groups have their own agenda. 0‘-^-e--
it-k-exx‘ k \ 1.4..Q.
The students work together until now and did well course,

RECOMM4NDATipiNts
4, Thd SA Army College, the Branch as well as 00C Trg Fmn could have addressed this
issue,' when it came to light that problems are experienced which might be out of control.
5. . The SA Army Gauge must dear in the same manner with all students, where there were apparantchginnei skipping to ttie Cr, that should be addressed accordingly, unless such students addressed a problem officially, institute a procedure spelled out to all students in future what channels need to be followed first before addressing it directly to the CI or Commandant of the Correge. ricle.,v4va_py,00 kr..",, kob.x.srL, )
■00. Cp.'•=1
Students' must N; addressed before they depart from the SA Army College, And it must be stressed that they are senior leaders of the SA Army, who is supposed to .be an example to athers when returing to their units. The fact that they couldn't solve the issues on course showed that they-are-either not willing to-vfork-together_as_one Army _arten_Ppirktrm do not want to team from each z,?ther, try to compromise where needed, in a nutshell they will have to leom-to
act as Adults. cx,0.),- 4. 4-4- it,ctot C a'Nff-'°--&-"Ac3 CATT‘L‘:, Viic' 401
ci°1Ctra Vvklk=i poil4tt$1
cw8N, cwt k?T loet■
kcinkm
7. Steven, I think you need to ponclude with what we wrote down on the FlipChart paper on V.A.A.-
yourwall, where we came to the conclusion whet the students will have do do to be successful or how they could have solved the problem(Paper on you far left on the wail).
8. 1 hope this will help you If you did not address the above Inputs already.
Lo_
ok \q„sio t
LM WHITE) INSP5CT1ONS ; COL
Q-AZ‘z.k.. 4, s;) \V-QA
v5ksA.N. c.st,\NL fak
rmeNA-x,
, %TE

51314 11h

FACSIMILE COVERING SHEET
LEGAL SATELLITE OFFICE THABA TSHWANE

Fax Numbers: (Code - 012)
351-2165
or 351-2184 r
‘.4* IP!.
,(..M LEGSATO Thaba Tshwane Private Bag X1044
Thaba Tshwane
0143
Priority; R
Date/time: 11 AUGUST 2004
Number of pages including this covering sheet: 06 Classification: RESTRICTED
File Ref: LTT/RJ50516/4 LTT1R/106/15
i..
- .. zg.

From: ,S01 Legal_Advice and Litigation
LEGSATO Thaba Tshwane
To; CMLS
For Attention: Personally to Brig Gen S.B. Mmono Tel No: (0_12)_ 35121-30 .
Tel No: (012) 355 5380
Fax: (012) 355 5372
LT COL PHIRI V MIN FOR DEFENCE AND OTHERS
1. Instructions during the meeting at the offices of the State Attorney on 10 instant wrt abovementioned matter refer.
2. Attached hereto:
a. Memorandum from Col White addressed to Col Mokalake dd 28 Feb 2001.
b. Affidavit by Lt Col Lourens dd 11/08/2004 wrt JCSD Assessment Board held on 30/01/2001.
3. The letter from the White Student Grouping could still not be found. An affidavit to that effect will be requested if the letter is not found soon.
Authorised by: Lt Col J.H.P. Coetzee Rank, Initials and Surname
Tel No: (012) 351 2130 Signature:




11-AUG-2004 08:33 FROM:IG RRMY 3551355 TO I*0351E1G5 P:

‘5131412:



CI Urgent Q far Roview L:1 Please Comment ID Please Reply D Plrmee Recycle
•Comments:_MEMO —ALLEDGED RACIAI—DISHARMCMY-JCSC
1. . Attached hereto the Memo that was referred to yesterday wrt my inputs to Cot Mokolake
before the Pecision Brief was compiled for presentation to the AC (Alleged Racial Disharmony at the JCSC),
2. .The Inputs were complied after the session with students at the JCSC at the SA Army College.
3. No other notes are available as the case was concluded during March 2001, we seldom keep
handwritten notes after we compiled our reports.
4. ' The letter that the Whlte student grouping wrote Is still missing. According to our Chief Cleric
various people had access to the file from 2001, and it IS suspected that the letter is removed from the file, by whorri is however In question,
9
NSPECTIONS Cat,

ti *I
5BM 13
MSIZA
ATTORNEYS
3' PLoOR, SUITE 335 P_OROXL4,064.
STANDAD BANK CHAMBERS THE TRAMSHED
CHURCH SQUARE 0126
PRETORIA, 0002
TEL: (012) 326 5346
E-MAIL: joernsizaOtelkomsamet TELEFAX: (012) 326 5346
CELL: 082 737 2010
Partner; Si.MSI7A 13.1uris(UNIN) LL.B.(UP)
TELEFAX-TRANSMISSION: DATE: 12 JULY 2004
The information contained in this facsimile is solely intended for the named recipient/5 only. It may contain privileged and confidential information and if you are not the Intended recipient. and you have received this facsimile by error; you must not copy, distribute or take any action in reliance on it.

TO FROM
YOUR REF OUR REF
Dear sir / Madam : STATE ATTORNEY, PRETORIA : Mr. Msiza
:1235/04/236 MSIZA / P027 TELEFAX NO: (012) 322 0177 TOTAL PAGE (S) : 03 Inclusive.

M,G,PHIR1 / MINISTER OF DEFENCE
1, We refer to the above matter and enclose herewith correspondence on behalf of our client which is
self explanatory.
2. Kindly furnish us with your response herein.
Yours faithfully MST7A ATTORNFYS
Per S.J. MSIZA


SA3Ne1011V 9t7Eq97P7-rn

09/C:J7i200d 12:d9
RESTRICTED P4GZ 01/02
CMLS 5fR/98007693Pt

Ttlephonc: (012) 355 5319 Facsimile: (012) 355 5372 Enquiries: Col a Q.P. Simelane

Department of Defence
Military Legal Services Division. P:riv4te Bag X159
• ;PRETORIA:
0001,0„,
ruly.2004

--=7
1VISIZA ATTORNEYS
• riFloor, Suite 335
Standard Bank Chambers Church Square
Pretoria
) 0002
(t112) 326 5346 Fax: (012) 326 5346 Cell: 082 737 2010
Dear Sir
S v M.G. PIRI
1. As you know I represent Lt Col G.M. Phiri as his Senior Defence Counsel in his
matter before the Court of Senior Military Judge.
2_ I remember that during the early days in this =ter I also drew the attention of the
Court and placed on record the fact that the matter was also being investigated by the Minister's office. Col-"MagrwaliSa ----Of the Minister's office also con _firmed the investigations being undertaken by the Minister's office and that the relevant reports on the SA Army College's racial conflict were being sought from the organs couet:-rucl. Who33. I so drew the Court's attention to the involvement of the Minister's office as aforementioned I was in fact objecting to the matter huh's, proceeded with bcfore the Minister's report has been made aiiailable to Lt Col Phiri and his defence counsel. I even raised the issue of jurisdiction and the authority upon which the prosecution was being conducted when, it is considered that the Minister of Defence under whose name the prosecution is being conducted was still investigating the matter. For ease of reference I attach hereto a letter dated 7 December 2001 under the said Col MagxwaliSa's signature addressed by the Ministry of Defense to Lt Col GM. Phiri.
3. My purpose of writing this letter to you as Lt Col G_M. Phiri's instructing attorney in. the High Court matter is to draw your attention to the fact that the report arising from the said Ministerial Investigation in this matter is also required for the purpose of enabling the said Lt Cal G.M, Phiri to prepare of his defence. 'I may also indicate that during the hearing of last Tuesday the e instant I reminded the prosecution counsel of this fact .,uid the transcript of the record, of proceedings concerned can confirm this.
4. In the light of the aforegoing we kindly request that the State Attorney be advised to obtain this report arising from the said Ministerial Investigation as well.
RESTRICTED
7M r)H_t


09/07/7,A114 13:44 0123555372 RESTRICTED PAGE 02/03
2


Disra
'or In, °
CrOiC Legsato Thaba Tshwane
Lt Col G.M. Phiri
jnternal
CMLS 5/R/98007693PB (Attention: Lt Cal C.H. Slabbart)
(Attention: Maj E. Pakenclorf)



RESTRTCTED
E0 30Vd SA3NZI01IV VZISN

DO
'Ministry of Defence
South Africa MS/R/509/1/121610



L.1 Col G.M. Phiri
Defence Intelligence Private Bag X367 Pretoria
0001
—eutenent Colonel
SITUATION : SA ARMY COLLEGE
As directed by the Minister of Defence, receipt is acknowledged oIyour letter dated 23 November 2001.
The matter is receiving the necessary attention and you will be advised of an answer an due course.
Yours faithfully

(COLONEL LW. MAGXWALISA)
FOR HEAD OF MINISTERIAL SERVICES : CHIEF DIRECTOR
"1:1,__ 121610



CliLIO/ZUCIO U.1.2z;b121i2
AFFIDAVIT PAGE 02/ E12
ati1480

1. 1, no 94681202PE Lungile Wiseman Magxwalisa declare as follows:
a. A letter MS/R/509/1/121610, Situation: SA Army College, dd 7 December 2001 was forwarded to Lt Col G. M. Phiri, Defence Intelligence after receipt of his letter dated 23 November 2001. This letter was only to acknowledge receipt of Lt Col Phiri's letter. The letter was forwarded to the Chief of the SANDF and the Ministers Office conducted no Ministerial inquiry.
2. In reply to questions put to me by the commissioner of oaths, I also declare that: a. I know and understand the content of the above declaration;
b, I have no objection to taking the prescribed oath; and
c. I consider the prescribed oath as binding on my conscience.
3. Thus declared and signed by me after pronouncing the prescribed oath on
the 03 rd day of infy 2005 at 41-G547-e, 7711904 /7Nfv?7,.yE

SIGNAT DEPONENT
4, I certify that the deponent has acknowledged before me that he knows and understands the content of this declaration. Thus acknowledged, sworn and signed before me on the ogrcl day of t\A 2005 at LE-6--s14'C:7 TH-F+426

EX Off! 1SSIONER OF OATHS
Full name of commissioner of oath in his/her own printed handwriting

Business address of commissioner of oaths in his/ .ECTI9 /01-D u-Reizo
Her own printer handwriting Tc-et ov-4-
Rank and Arm of the Service of a commissioner of
oaths appointed ex officio cc 5cuN LGA r•J A



Telephone: (012) 355 5360 Facsimile: (012) 355 5372 Enquiries: Brig Gen S.B. Mmono
From: CMLS
To: C SANDF
Info: CCS `5November 2004

NON-COMPLIANCE WITH THE HIGH COURT ORDER. AND THE REQUEST FOR A MINISTERIAL INVESTIGATION REPORT: S V 98007693PE LT COL G.M. PHIRI
Memo C SANDF/R/509/1/167060 dd 25 Oct 04 refers.
2. Attached please find a draft response for C SANDF's signature as requested.
9 ( 0 RIG GEN S. M 4StA)) ti CHIEF MILITARY LEGAL SERVICES: R ADM
SBM/DP(PHIRI)
Enclosure: Draft response
MiNISTRYOF DEFENCE
P IV TE BAG X 427
2 -1] - U •
Fri?/6/ a-TOR?
///0 26 V1};101.9d LOGO Z,Zt7 X )IVS1VVA1Ud
ZNIEIZICIM 31U1sINIVI

RESTRICTED
INTEGRITY AND JUSTICE


Minister of Defence P 0 Box 427
Pretoria
0001
1onourable Minister
NON-COMPLIANCE WITH THE HIGH COURT ORDER AND THE REQUEST FOR A MINISTERIAL INVESTIGATION REPORT: S V 98007693PE LT COL. G.M. PHIRI
Appendix A: High Court Order
B: Letter CMLS 5/R/98007693PE dd 9 Jul 04
C: Letter LEGSATO TT(6)/R/106/7 dd 20 Oct 04
D: Letter 897/04/1235/L10/SN dd 6 Oct 04
1. Ms/509/115090/9 dated 21 October 2004 refers. BACKGROUND
2. On 9 March 2001 Lt Col Phiri was arraigne...d to appear in the military court to face ›ciplinary and/or criminal charges preferred against him by the State.
3. The charges he is facing in the military court range from using threatening, insubordinate or insulting language (sec 17 MDC); conduct prejudicial to military discipline (sec 4.6 MDC); riotous or unseemly behaviour (sec 45 MDC); crimen injuria; absence without leave (sec 14(a) MDC) and; disobeying lawful commands and orders (sec 19(2) MDC).
4. The charges preferred against the member are • pursuant to some investigations done during his attendance of the Junior Command Staff and Duties Course (JCSD) at the Army College in 200.1. Certain statements were obtained from witnesses who were involved in,thp., course such as the instructors and students.
R • ga.,,,,I0c.:;um r45_,

1 9314/5

Apparently some of the witnesses at the military court made reference to the documents or reports compiled when the member was attending the course at the Army College.
6. Because of this reference made, he requested the relevant authorities within the DOD
to allow him access to the documents or reports that were being referred to by the witnesses at the military court. It is his contention that he was denied access to the documents. After he had exhausted the internal remedies, he lodged an urgent application to the Transvaal Provincial Division High Court for an order declaring that he is entitled to have access to the documents and/or information held by the DOD.
7. In his founding affidavit the Applicant (Lt Col Phiri) alleged that he had no sight of
the reports and he is therefore prejudiced because he is unable to conduct an effective cross-examination of the witnesses who already have testified against him.
8. The Applicant .prayed that the DOD, in particular Fifth Respondent Maj H.S.
Pretorius, be ordered to furnish him with the following documents:
a. South African Army Inspector General's report involving Phiri et al at the South African Army College; February to March 2001;
b. The Commander's investigation report as ordered by acting Commandant of the SA Army College Colonel Edward France Drost to look into complaints against Lt Col Phiri; March 2001;
c. The B MATT intervention report (intervention at the SA Army College — January/February 2001 by the British Military advisors to SA National Defence Force. •
9. The Applicant brought an urgent application to the High Court on 23 March 2004.
Due to a short notice the State Attorney and the DOD were not able to oppose the application. The High Court granted the relief sought by the Applicant as per attached High Court'Order, which is Appendix A.
10. On 7 April 2004, D SANDF LS notified all the role players in the DOD of the content
‘`) the High Court Order and requested to be furnished with the documents.mentioned in the iigh Court Order in order to comply therewith.
11. General Officer in Charge (GOiC) of Legal Satellite office. Thaba Tshwane (Legsato
TT) acted as a coordinator to secure the documents requested. The documents were then submitted to D SANDF LS with the explanation that no B MATT intervention report could be found but only the minutes of the JCSD Assessment Board meeting dated 30 January 2001.
12. On 16 April 2004, all the documents requested by the Applicant, even those which
were fOund to be irrelevant, were submitted by the DOD to the office of the State Attorney in order to be handed over to the Applicant's attorney in compliance with the High Court Order.
13. Subsequently, a response was received from the office of the State Attorney to the
effect that the Applicant's attorney is not satisfied that all the requested documents were provided to them.

14. On 2 June 2004, D SANDF LS informed the office of the State Attorney (Ms F. Mokgale), that there are no documents which are withheld from the Applicant. It was further suggested that, the office of the State Attorney should arrange a round-table meeting between the Applicant's attorney and the DOD in order to resolve the matter speedily.
15. While the arrangements were being made to have a round-table meeting between the two parties, GOiC Legsato TT informed D SANDF LS that the Applicant's Defence Counsel (Col . Simelane) has requested an additional document which did not form part of the documents mentioned in the Court Order. The requested document is a report arising from the Ministerial Investigation relating to the Applicant (see Appendix B).
16. D SANDF LS informed GOiC Legsato TT that it is advisable that the request should be handled separately from the documents initially requested. He was also asked to inform the Applicant's Defence Counsel that it is not possible to provide him with the purported Minister's report unless a formal request is submitted.
CURRENT SITUATION
)7. A round-table meeting was held on 21 September 2004 at the office of the State
Attorney.. On behalf of the DOD, the meeting was attended by the State Attorney's representative (Mrs Freda Mokgale), D SANDF LS (Brig Gen S.B. Mmono), Brig Gen Moshoala and Col Mokalake. The other party consisted of the Applicant's attorney (Mr Msiia), the Applicant and the Applicant's Defence Counsel.
18. After a lengthy meeting and despite everything reasonably done by the DOD to comply with the High Court Order, the Applicant is of the view that the DOD did not comply with the Order because the Department failed to provide certain documents requested, in particular the document titled "South African Army Inspector General's report involving Phiri et al at the South African Army College; Feb to Mar 2001".
19. It is the DOD's submission that it has provided the said documents and therefore complied with the High Court Order.
20. At the meeting, the Applicant requested that the military court hearing scheduled for 8 October 2004 be postponed sine die until the issue of compliance/no-compliance is sorted
21. D SANDF LS agreed that the military court hearing be postponed but not sine die as it is not a common practice to postpone criminal cases sine die but to a specific date.
22. On 8 October 2004, the military court hearing of Lt Col Phiri was postponed to 2 February 2005. The presiding judge ruled and recommended that the DOD should hand over all the documents, including the Ministerial Investigation report (see Appendix C).
THE WAY FORWARD
23. In order to overcome the impasse, the State Attorney has recommended that in view of the fact that the parties have failed to reach an agreement on the issue of the compliance with the High Court Order, she is of the opinion that the DOD should approach the High Court for a declaratory Order that the Minister of Defence has complied with the Order issued (see Appendix D).

24. . The State Attorney has also requested D SANDF LS to approach the Army Council to request a copy of the final report referred to in the decision brief to the Army Council on the alleged Racial Disharmony at the SA Army College. The report or in its absence an affidavit will be used in support of the application to the High Court.
25. D SANDF LS has requested GOiC Legsato TT on 19 October 2004 to provide the said document to CMLS in order to give feedback to the State Attorney and to finalise the matter.
RECOMMENDATION •
26. Subject to the availability of the Ministerial Investigation report referred to in par 15 . above, it is recommended that the report be made available to Lt Col Phiri's Defence Counsel as requested. The handing over of the report will also be in accordance with the military court recommendation.
27. The Minister's approval be granted to implement the advice given by the office of the State Attorney that the DOD should approach the High Court for a declaratory Order that it as complied with the High Court Order issued on 23 March 2004.
(S. NYANDA)
CHIEF OF THE SOUTH AFRICAN NATIONAL DEFENCE FORCE: GENERAL
Decision/comments



313 'I 158

MINISTRY OF DEFENCE
Republic of South Africa
MS/R/50911/121610
Telephone : (012) 355-5435 Private Bag X 427
Facsimile : (012) 355-6013 PRETORIA
E-Mail : advisodm@mweb. co . z a 0001
Enquiries : Ms EM Kubushi
Your Ref :
31st January 2005
NON-COMPLIANCE WITH THE HIGH COURT ORDER AND THE REQUEST FOR A MINISTERIAL INVESTIGATION REPORT: S V 98007693PE LT COL G M NUM
1. Reference is hereby made to your request that you be provided with a copy of a report arising from the Ministerial Investigation, in respect of Lt. Col. Phiri.
2. According to information in the file the Minister did not commission any investigation in respect of Lt Col Phiri and as such the report requested is not available.
3. What actually transpired is that this office received a letter from the Presidency wherein a copy of a letter from Lt Col Phiri was attached. The said letter from the Presidency together with the attachment was sent to the Chief of the SANDF for a response. The Chief of the SANDF responded by saying that he could not comment on Lt Col Phiri's letter as issues mentioned in his letter were still sub judice. The response was then referred to the Presidency.


2


4. At the time when Col. Maxwalisa responded to Lt Col Phiri's letter a reply was still being awaited from the CSANDF's office. Unfortunately this office did not bring the CSANDF's response to the attention of Lt Col Phiri
(TA RATSOMO)
HEAD OF MINISTPTZTA SERVICES; riarr,F nt-nreTOR
For Action:
Chief Military Legal Services (Atten: Major General Mmono)

55 ti
1
AFFIDAVIT
1.
I, 77872315PE LT COL ELIZABETH DE VILLE LOURENS with ID no 4502020002086 hereby declare under oath as follows:
have been appointed as the Staff Officer Glass 1 Training at the SA Army College since 1995 and I still hold this post,
2.
On 30 January 2001 I was the secretary for the assessment board which was convened far the then Junior Command and Staff Duties Course. Number 98007693PE Lt Col G.M. Phiri, a member of the Infantry Corps, 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 give their comments in writing on the appendices to the main document which contained the generic 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 appendix allocated to each candidate who appeared before the board. In order to keep the generic minutes of the board as short as possible, candidates were afforded the opportunity to write their comments on the appendix 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) are forwarded to all addressees and with them only the relevant appendices to the `need-to-know7 addressees, It should also be remembered that the candidates are not authorized to sign the minutes for correctness, but are entitled to make written comments on, read and sign on the appendix for each of them. These arrangements ensure more privacy for the candidates.
a
I declare that I did not minute Lt Cal Phiri's comments to the board and that he was given the opportunity to make written comments on the appendix allocated to him during the proceedings of this assessment board.
4.
This is all I wish to declare.
(E. DE V. LOURENS)
SOl TRG SA ARMY COLLEGE: LT COL


The affidavit by Lt Cal E. de V, Lourens on page 1 was signed before me under oath on IC August 2004 at the SA Army College, Pretoria.

IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
CASE NO: c)(0'D--Ct_.
In the matter between: -
THE MINISTER OF DEFENCE FIRST APPLICANT
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE SECOND APPLICANT
and
GOODMAN MANYANYA PHIRI RESPONDENT
CONFIRMATORY AFFIDAVIT
I, the undersigned,
ELIZABETH DE VILLE LOURENS
do hereby declare on oath and state as follows:
1
I am an adult female Lieutenant Colonel in the employ of the Department of Defence and a Project Member SA Army 2020 and stationed at Thaba Tshwane, Pretoria.


2.
The facts deposed to herein are, unless otherwise stated or the contrary appears from the context, within my personal knowledge and information and are true and correct.
3.
I have read the founding affidavit of Major General SEGOMOTSO BAILEY MMONO and hereby verify and confirm the facts set out therein in so far as they fall within my personal knowledge and/or refer to me. In particular I wish to confirm that on 11 August 2004 I deposed to an affidavit relating to the Board meeting that was held on 30 January 2001.
4.
The said affidavit has been attached as an annexure to these papers and I confirm the contents thereof. I request that it should be read as forming an integral part of the founding affidavit in this matter.


DEPONENT

THUS SIGNED AND SWORN TO BEFORE ME AT 9f7 ri0R-M- ON THIS
THE 0'7 DAY OF JUNE 2005, BY THE DEPONENT HAVING
ACKNOWLEDGED THAT SHE KNOWS, UNDERSTANDS AND HAS NO OBJECTIONS TO THE CONTENTS OF THIS AFFIDAVIT. SHE CONSIDERS IT TO BE CORRECT, TRUE AND BINDING ON HER CONSCIENCE.

:F NnAK.FlurbA
704-0052SS'
COMMISIONER OF OATHS

IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
CASE NO:
In the matter between: -
THE MINISTER OF DEFENCE FIRST APPLICANT
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE SECOND APPLICANT
and
GOODMAN MANYANYA PHIRI RESPONDENT
CONFIRMATORY AFFIDAVIT
I, the undersigned,
JOHANNES HERMANUS PETRUS COETZEE
do hereby make oath and state as follows:
1
I am an adult male Lieutenant Colonel in the employ of the Department of Defence and a Senior Officer in Charge: Legal Advice and Litigation, at Legal Satellite Office ("LEGSATO"), Thaba Tshwane, Pretoria.

ath

2.
The facts deposed to in this affidavit are to the best of my knowledge and information true and correct, unless otherwise stated or the contrary appears from the context.
3.
I have read the founding affidavit of Major General SEGOMOTSO BAILEY MMONO and hereby verify and confirm the facts set out therein in so far as they fall within my personal knowledge and/or relate to me.
Y'012-Ng1>
THUS SIGNED AND SWORN TO BEFORE ME AT icky,..Aio O. ON THIS THE 51,0-0--5 DAY OF MAY 2005, BY THE DEPONENT 'HAVING ACKNOWLEDGED THAT HE KNOWS, UNDERSTANDS AND HAS NO OBJECTIONS TO THE CONTENTS OF THIS AFFIDAVIT. HE CONSIDERS IT TO BE CORRECT, TRUE AND BINDING ON HIS CONSCIENCE.

IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
CASE NO: Dt.) u_S
In the matter between:-
THE MINISTER OF DEFENCE FIRST APPLICANT
DIRECTOR, MILITARY PROSECUTIONS SECOND APPLICANT
DEPARTMENT OF DEFENCE
and
GOODMAN MANYANYA PHIRI RESPONDENT
CONFIRMATORY AFFIDAVIT
I, the undersigned,
STEPHEN OUPA MOKALAKE
do hereby declare on oath and state as follows:
1
I am an adult male Colonel in the employ of the Department of Defence and a Senior Staff Officer: Inspections IG Army at Army Office, Pretoria.

2.
The facts deposed to in this affidavit are, unless otherwise stated or the contrary appears from the context, within my own personal knowledge and are true and correct.
3.
I have read the founding affidavit of Major General SEGOMOTSO BAILEY MMONO and hereby verify and confirm the facts set out therein in so far as they fall within my personal knowledge and/or refer to me. In particular, I wish to confirm that on 20 September 2004 I deposed to an affidavit relating to the matter of Lieutenant Colonel Phiri. The said affidavit forms part of the annexures annexed to these papers. I request that this affidavit should be read as if forming an integral part of the Applicants' founding affidavit.

THUS SIGNED AND SWORN TO BEFORE ME AT L012-12---°11-CION THIS THE I DAY OF JUNE 2005, BY THE DEPONENT HAVING ACKNOWLEDGED THAT SHE KNOWS, UNDERSTANDS AND HAS NO OBJECTIONS TO THE CONTENTS OF THIS AFFIDAVIT. SHE CONSIDERS IT TO BE CORRECT, TRUE AND BINDING ON HER CONSCIENCE.
0 I gl-a-7 Gais
pr), 6 alq P1.FLA
COMMISIONER OF OATHS
iv; E E Ff.; A PO

COMMUNn-Y F;EIIPPCE
Ik.",i;C:;-'3DAE3-FII,:9 • •

IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
CASE NO: ?..6-}g O
In the matter between: -
THE MINISTER OF DEFENCE FIRST APPLICANT
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE SECOND APPLICANT
and
GOODMAN MANYANYA PHIRI RESPONDENT
CONFIRMATORY AFFIDAVIT
I, the undersigned,
HENDRINA MAGDALENA WHITE
do hereby make oath and state as follows:
1
I am an adult female Colonel in the employ of the Department of Defence and
holding the post of Senior Staff Officer Inspections in the office of the Inspector VTh,
Agri OFRCZ
General Army at Thabo T:-.Thwane-; Pretoria.

2.
The facts deposed to in this affidavit are to the best of my knowledge and information true and correct, unless otherwise states or the contrary appears from the context.
3.
I have read the founding affidavit of Major General SEGOMOTSO BAILEY MMONO and hereby verify and confirm the facts set out therein in so far as they fall within my personal knowledge and/or refer to me.

THUS SIGNED AND SWORN TO BEFORE ME AT ON THIS
THE DAY OF JUNE 2005, BY THE DEPONENT HAVING
ACKNOWLEDGED THAT HE_KNOWS, UNDERSTANDS AND HAS NO
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CASE NO: 26284 / 2004
In the matter between:
THE MINISTER OF DEFENCE First Applicant
DIRECTOR, MILITARY PROSECUTIONS
DEPARTMENT OF DEFENCE Second Applicant
And
GOODMAN MANYANYA PHIRI Respondent
FILING NOTICE
DOCUMENT RESPONDENT ANSWERING AFFIDAVIT
FILED BY MSIZA, KRUGER & BEMBE INC. ATTORNEYS FOR RESPONDENT 793 MERTON STREET
ARCADIA
TEL:012 342 7282
REF:MSIZA / J100/04
TEL : 012 342 7282

TO REGISTRAR OF HIGH COURT
TSHWANE
AND TO STATE ATTORNEY OU MUTUAL CENTRE ANDRIES STREET TSHWANE
REF:1235/2004/Z36 Mrs.A.G.F.MOKGALE
RECEIVED COPY HEREOF ON THE DAY OF SEPTEMBER 2005.


CASE NUMBER: 26284/05
In the matter between:-
THE MINISTER OF DEFENCE First Applicant
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE Second Applicant
and
GOODMAN MANYANYA PHIRI Respondent
RESPONDENT'S ANSWERING AFFIDAVIT
I, the undersigned,
GOODMAN MANYANYA PHIRI
do hereby make oath and say:
1.
1.1 I am an adult male and a Lieutenant Colonel in the South
(-2