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| "Siziwe" a.k.a "Sighs", the self-professed Nelson Mandela Cousin who achieved generalcy and other ranking through adultery/prostitution with at least one Raymond Lentsoe in Year 2000. Goodman Manyanya Phiri, according to Mr Jacob Zuma, must for 11 years now therefore continue to suffer for blowing the whistle against this relative to a Mandela that Zuma calls "The Father of The Nation South Africa". Her official name is Winnie Ntombizodwa Zini-Bobelo |
AD PARAGRAPH 13.11.3 THEREOF:
49.1 I repeat the contents of paragraph 1(d) of Annexure "3131119". I
further wish to state that there was no collective grievance received by Colonel White and Colonel Mokalake. The course chairperson too, did not submit any statement.
49.2 The rest of the allegations made in this paragraph are denied.
50.
AD PARAGRAPH 13.11.4 THEREOF:
50.1 The findings submitted to the Army Council is contained in the
Decision Brief (page 164 of the bundle). The Respondent
confuses the IG Army report with the decision brief.
50.2 The rest of the allegations contained herein are denied.
AD PARAGRAPH 13.11.5 THEREOF:
Paragraph 1(i)(j) of annexure "SBM9" explain the position clearly. Colonel White was not involved in the investigation of redress of wrongs submitted by the Respondent against General Mashoala....[(to the reader of this post, Blogger's elucidation on the Mashoala character, please check the yellow highlight to be found here)].... The redress of wrongs has nothing to do with the decision brief sent to the Army Council. After Colonel White sent the Respondent away ( see paragraph j ) he then submitted his redress of wrongs.
51. AD PARAGRAPH 13.11.6 THEREOF:
52.1 In paragraph 1(l) of annexure "SBM9" Colonel White states that:
" The decision was made that Col. Mokalake would follow up." This is logical because Colonel White and General Mashoala were implicated and could not investigate themselves. The result was the IG report prepared by Colonel Mokalake.
52.2 According to Colonel White a month or months after March 2001
she received certain documents in an envelope classified "secret" from the Respondent. She sent them back to the Respondent because at that stage she was not yet "secret" classified and could not open and deal with such mail. The mail, which was sent through the "secret" postal service of Military Intelligence, was for the attention of about sixty (60) respondents, including the President of the Republic of South Africa.
52.3 Furthermore, it is significant to note that the Respondent now
acknowledges that there were two (2) different investigations conducted. That is, the one mentioned by Colonel White in paragraph 1(a) of annexure `SBM9" (resulting in the decision brief) and the other in which General Mashoala and Colonel White were implicated (resulting in the IG report of Colonel Mokalake dated 25 June 2001). as already set out elsewhere in these papers.
52.4 It might be so that the Respondent's logical conclusion would be
to have two (2) reports. That is a question of semantics. As I have mentioned, the Respondent might refer to the decision brief as being also a report.
184 Applicants' Replying Affidavit
37
52.5 As already reiterated above, the first mentioned investigation
concerned the alleged racial disharmony at the College (which is what Respondent alleges is contained in the IG army report). The second mentioned one by Colonel Mokalake alone, resulted in the IG army report.
53. AD PARAGRAPH 13.11.7 THEREOF:
Reference to the report by the Respondent in this paragraph should by now be clear to him that it is reference to the decision brief filed with the IG Army Internal Office (contained on page 164 of the bundle).
54. AD PARAGRAPHS13.13 AND 13.14 THEREOF:
The mention of the word report in paragraph 1 of Annexure `SH11110" was not inadvertent. Colonel White and Colonel Mokalake came up with the decision brief.
38
55. AD PARAGRAPH 14.1 THEREOF: I repeat the contents of paragraphs 11.4 and 52.4 above.
56. AD PARAGRAPHS 14.3 AND 14.4 THEREOF:
The contents hereof are noted as same have already been dealt with.
57. AD PARAGRAPH 14.5 THEREOF:
57.1 The document dated 7 February 2001 which is marked
Annexure "GMP3" to the Respondent's papers is unsigned. Colonel White denies having received the letter. It is also astounding that this letter bears another date of 19 April 2001 on top and is being referred to as appendix "C". This is not how the DOD runs its business. If there was an appendix, it must have been attached. This letter cannot be an appendix to itself.
186 Applicants' Replying Affidavit
39
57.2 The statement by the course Chairman titled "STATEMENT
MADE FOR THE IG BY MAIJ K.E MATLI" and dated 24 February 2001 was neither received by Colonel White nor Colonel Mokalake for the purposes of the Decision Brief.
58. AD PARAGRAPH 14.6. THEREOF:
The Applicants deny the allegations made in this paragraph. The Applicant persists with the averment made in this regard.
59. AD PARAGRAPHS 15.1. AND 15.3 THEREOF:
I repeat the contents of paragraph 11 of the Applicants' founding papers.
60. AD PARAGRAPH 15.4 THEREOF:
We are not dealing with an order of the Military Court as suggested by the
Respondent. I have had a look at Annexure "GMP4". To this end and as a
response to Annexure "GMP4", I refer yet again to paragraph 2 of Annexure
"SBM15B" and to paragraph 1 of Annexure `SBM14B" to the Applicants' founding papers. I need not repeat what was said therein because that is clearly set out in paragraph 11.4 of the Applicants' founding papers.
61. AD PARAGRAPH 16 THEREOF: The contents of paragraph 12 are repeated herein.
62. AD PARAGRAPH 17 THEREOF: I repeat the contents of paragraph 60 above.
63. AD PARAGRAPHS 18 AND 19 THEREOF:
I repeat the contents of paragraph 15 and paragraph 2(b) of Annexure "SBM6" of the founding papers as well as what I have already stated in paragraph 44 above.
188 Applicants' Replying Affidavit
41
64.
AD PARAGRAPH 20 THEREOF:
The allegations made in paragraph 20.1 have already been dealt with. The allegations made in paragraph 20.2 are denied.
65.
AD PARAGRAPHS 21,22 AND 23 THEREOF:
The allegations made in these paragraphs are denied.
WHEREFORE the Applicants persist with their application.
Thus signed and sworn to before me at Pretoria on this the1,7141 day of
NOVEMB9-005 by the deponent having acknowledged that he understands, knows and has no objections to the contents of this affidavit and considers them to be binding to his conscience.
Commissioner of Oaths
189 Supporting Affidavit by H M White
IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
Case No: 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
SUPPORTING AFFIDAVIT TO THE APPLICANTS' REPLYING AFFIDAVIT
I, the undersigned,
HENDRINA MAGDALENA WHITE
do hereby declare on oath as follows:
1
1.1 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 Inspector General Army at Army office, Pretoria.
190 Supporting Affidavit by H M White
2
1.2 The facts deposed to in this affidavit are, unless otherwise
stated or the contrary appear from the context, within my own personal knowledge and are true and correct.
1.3 I have read the replying affidavit of Major General Segomotso
Bailey Mmono. I confirm and verify the facts set out therein in so far as they fall within my personal knowledge and / or referred to me.
2.
2.1 I also confirm that I, together with Colonel Mokalake
accompanied Brigadier General Mashoala to the SA Army College on 6 February 2001. As the Inspector General of the Army, Brigadier General Mashoala instructed us to investigate alleged racial disharmony at the College. As set out in my affidavit (SBM9 to the founding papers) Brigadier General Mashoala introduced us to the students.
2.2 I have read the Respondent's answering affidavit and respond
thereto in the following manner.
3
3.
AD PARAGRAPH 2.9 THEREOF:
3.1 There was a complaint from the General Officer Commanding:
Training Formation that led to us conducting this enquiry which was not a formalised one. We stayed for two (2) weeks at the College and we interviewed students by means of random sampling. There were no statements of witnesses obtained.
3.2 The Respondent was not one of the students interviewed
because he did not present himself to the interview. Colonel Mokalake and I are not aware of the so-called "student collective grievance" mentioned by the Respondent which was allegedly sent to Brigadier General Mashoala. We never received such a grievance, if it ever existed.
3.3 I am certain that Brigadier General Mashoala never received
any documentation (collective grievance). The only document that we received was the one unsigned letter that was from the Concerned White Group. If indeed it was sent to the General, the Respondent should have a DD1054 (return of service) or alternatively, if it was sent to the General by mail it must have been recorded in the register for such purposes. Or a signature
192 Supporting Affidavit by H M White
4
of the recipient ought to have been appended. But none of this has taken place.
4.
AD PARAGRAPH 2.10 THEREOF:
4.1 It is true that I told him I was finalising the report. The report I
referred to was the Decision Brief already referred to by Major General Mmono. The Decision Brief was to be sent to the Army Counsel (AC) (consisting of six or seven Generals). When Respondent came to my office, it was not on 6 March 2001 but the previous day, 5 March 2001.
4.2 The following day, the Decision Brief was presented to the Army
Counsel. General Mgwebi was the only invited member to the Council. He was not a member of the Council. The AC tasked him to speak to the students at the certification ceremony that was to be held, because a course was ending that week, on 9 March 2001.
 |
Lieutenant Derrick Mbuyiselo Mgwebi, another Mandelasque-Xhosa-racist-Eastern-Cape-born
who, instead of approaching Phiri (and apprising the latter of developments and
decisions of the Army Council) who was the only person to be charged over the
entire College black-racist-pro-Mandelasque-Xhosa-tribalsim-fracas, preferred to
take with him to Burundi the self-same
suspected-sex-for-promotion-Zini-Bobelo-Lady where she was suspected to
be fornicating with SOMEONE at Mgwebi’s headquarters in Burundi where he was
representing the United Nations.
|
finalising the Decision Brief. I could not have accepted what the
Respondent had at that time because my fellow investigator,
Colonel Mokalake should also have seen what changes were
made, if any. I told the Respondent he had two to three weeks to come forward but he did not do so.
4.4 I deny that Brigadier General Mashoala had "reneged from• the
public undertaking" because he had made no such undertaking. The General never gave any student a hearing, but only introduced us to the students. He then had to look at our findings and recommendations. Our findings went directly to the AC. The AC opted for option 1 of the recommendations contained in the Decision Brief. That option provided that the
students were to be addressed as already stated. The report )0
dealing with alleged racial disharmony and conflict at the SA
Army College which the Respondent seeks turn out to be the Decision Brief.
OEPONENI
THUS SIGNED AND SWORN TO BEFORE ME AT PRETORIA ON THIS THE 24 DAY OF NOVEMBER 2005, BY THE DEPONENT HAVING ACKNOWLEDGED THAT SHE KNOWS, UNDERSTANDS AND HAS NO OBJECTIONS TO THE CONTENTS CONTAINED IN THIS AFFIDAVIT AND CONSIDERS THEM TO BE BINDING TO HER CONSCIENCE.
COMMISSIONER OF OATHS --
194 Confirmatory Affidavit by 208
E M Mashoala
IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
Case No: 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
CONFIRMATORY AFFIDAVIT TO THE APPLICANTS' REPLYING :0
AFFIDAVIT
I, the undersigned,
ENOCH MUISENG MASHOALA
do hereby state on oath as follows:
1
1.1 I am an adult male Brigadier General employed by the
Department of Defence and holding the post of Deputy Chief Director Army Corporate Services of the South African Army at Army Office, Pretoria.
195 Confirmatory Affidavit by E M Mashoala
2
1.2 I was holding the post of Inspector General of the South African Army at Army Office, Pretoria, for the relevant period during which the incidents occurred which gave rise to this occasion.
1.3 The facts deposed herein are, unless otherwise stated or the contrary appears, within my own personal knowledge and information and are true and correct.
1.4 I have read the replying affidavit of Major General
SEGOMOTSO BAILEY MMONO as well as the supporting affidavit of Colonel HENDRINA MAGDALENA WHITE. I confirm and verify 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 Prt-rtatfill ON THIS
THE 7( 5r DAY OF klec,f.--6iffk-712ce,TBY 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.
COMMISIONER OF OATHS C 1/-1 PAA f-W
196 Confirmatory Affidavit by S 0 Mokalake
IN THE HIGH COURT OF SOUTH AFRICA [TRANSVAAL PROVINCIAL DIVISION]
CASE NO: 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
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 at the time relevant to this application I held the post of Senior Staff Officer: Inspections IG Army at Army Office, Pretoria. My current posts is Senior Staff
197 Confirmatory Affidavit by S 0 Mokalake
2 Officer Command and Control at Joint Operations and currently sit in the Armscor building, Erasmus Kloof.
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 as well as the supporting affidavit of Colonel HENDRINA MAGDALENA WHITE 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.
DEPONENT
THUS SIGNED AND SWORN TO BEFORE ME AT ON THIS
THE DAY OF NOVEMBER 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.
198 Filing Notice
IN THE HIGH COURT OF SOUTH AFRICA [TRANSVAAL PROVINCIAL DIVISION]
CASE NO: 26284/05
In the matter between:-
FIRST APPLICANT
7.- ,,,,! fiC.005EIFEGSHOF VAN SA.
DIRECTOR, MILITA y,,- -,
-.at; • c vil-• FDELINN3
DEPARTMENT OF 10EFEI&EZ= VKAO
NTOR xe7
SECOND APPLICANT
05 --.1.- U 1
1
7 --
and i -eNgf-i,,,,Lofffficq
,,,-1-0,11,..uur.,,,
OF THE li IG Ft
H-,:v.,,t,ilt.,,,,,,i_ pRovitict„,,2, ,1faa___-kikP, C 0 U la or 5.A,
GOODMAN MANYANYA PHIRI RESPONDENT
FILING NOTICE
DOCUMENT
FILED BY CONFIRMATORY AFFIDAVIT OF STEPHEN OUPA MOKALAKE WRT APPLICANTS' REPLYING AFFIDAVIT
STATE ATTORNEY
ATTORNEYS FOR THE APPLICANTS OLD MUTUAL CENTRE
167 ANDRIES STREET
PRETORIA
TEL: (012) 309-1552 / 1500
REF: 1235/2004/Z36
MS A.G.F. MOKGALE
TO THE REGISTRAR OF THE HIGH COURT
AND TO MSIZA, KRUGER & BEMBE INC.
ATTORNEYS FOR THE RESPONDENT 793 MERTON STREET
ARCADIA
TEL: (012) 342-7282
REF: MSIZA I J100/04
RECEIVED COPY HEREOF ON THE
'rLDAY OF NOVEMBER 2005
Merton Ave 793 Arcadia, Pretoria Tel: (012) 342 7282
IN THE HIGH COURT OF SOUTH AFRICA [TRANSVAAL PROVINCIAL DIVISION]
CASE NO: 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
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 at the time relevant to this application I held the post of Senior Staff Officer: Inspections 1G Army at Army Office, Pretoria. My current posts is Senior Staff
2 Officer Command and Control at Joint Operations and currently sit in the Armscor building, Erasmus Kloof.
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 as well as the supporting affidavit of Colonel HENDRINA
MAGDALENA WHITE and hereby verify and confirm the facts set out therein in r0
so far as they fall within my personal knowledge and/or refer to me.
—DEPONENT
THUS SIGNED AND SWORN TO BEFORE ME AT THIS
THE "cl'• DAY OF NOVEMBER 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.
SUID-AFRIKA.ANSE POLISiEDIENS
STASIEKOMMISSARIS
2005 -11- 3 0
WIER.DABRUG STATION COMMISSIONER
SOUTH AFRICAN POLICE SERVICE
COMMISIONER OF OATHS
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NO: 26284/2004.1:;
In the matter between:
THE MINISTER OF SAFETY AND SECURITY First Applicant
DIRECTOR MILITARY PROSECUTIONS
DEPARTMENT OF DEFENCE Second Applicant
and
KINDLY TAKE NOTICE that he Application has been set down for hearing on the opposed
`3%.9v
motion roll on 'Fttescley, the * April 2006 at 10:00 or as soon thereafter as the matter may be
heard.
DATED at PRETORIA on this /0 day of FEBRUARY 2006.
ss
IF 2/ ....
THE STATE(ATTORNEY APPLICANTS' ATTORNEY OLD MUTUAL CENTRE 8TH FLOOR,
167 ANDRIES STREET
PRIVATE BAG X91
PRETORIA
DOCEX: 298
(897/2004/1235/Z36/SN)
Enq: A G F MOKGALE (Ms) Tel: (012) 309 1552
TO: THE REGISTRAR OF THE
HIGH COURT
PRETORIA
AND
TO RESPONDENT'S ATTORNEY
MSIZA, KRUGER & BEMBE INC 793 MERTON STREET
ARCADIA
Tel: (012) 342 7282 Ref: MSIZA/J100/04
COPY RECEIVED ON: k aw
DATE: \ \cra.Ack.c.-,
TIME: \e-k—\
RESPONDENT' ATTORNEY
MKB INC.
RECEIVED WITHOUT
PREJUDICE
MKB INC.
Merton Ave 793
Arcadia, Pretoria
Tel: (012) 342 7282
C ARMY/IG ARMY/R/506/2/6
Telephone: 012-355 1289 Department of Defence
GSN: 810-1289 (Inspector General Army)
Fax: 012-355 2101 Private Bag X981
Enquiries: Col S.O. Mokalake Pretoria
0001
DS" June 2001
REPORT ON AN INVESTIGATION INTO ALLEGED IRREGULARITIES IN THE JUNIOR BRANCH ADMINISTRATION: COURSE 701 G37 2000/02
Appendix A: Redress of Wrong letter CMLS 1/C/106/29
B: Lt col 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 Brig Gen E.M. Mashoala dd 06 March 2001.
E: Incident Report on Lt col G.M. Phiri.
F: Response Letter by Col B. Kleynhans.
G: Irregularities in the Junior Branch: Course 701 G37 200002 dd February 2001.
H: Milestone two and tree speech.
I: Incident Report: The colonel's blue eyed boy.
J: Copies of Orders before the OC.
INTRODUCTION
1. C Army ordered an investigation into alleged irregularities in the junior branch administration course 701 G37 2000/02 after a complaint by Lt col Phiri on the above matter.
AIM
2. The aim of this investigation is to verify and validate the above alleged irregularities in the junior branch administration.
SCOPE
3. The report addresses the following aspects:
a. Background.
b. Modus Operandi.
c. Grievances by Lt Col M. Phiri.
d. Findings.
e. Implications.
f. Recommendations. BACKGROUND
4. Lt Col M. Phiri wrote a redress of wrongs letter against Brig Gen E.M.
Mashoala whereby he requested to be given the necessary audience wrt the above matter by IG Army as this opportunity did not prevail during the first main preliminary investigation by IG Army Inspectors wrt racial disharmony at the Army College hence an intervention by IG Army into the alleged irregularities by SSO Inspections (Col S.O. Mokalake). 10
MODUS OPERANDI
5. The investigation was conducted as follows:
a. The aim of the investigation was disclosed to all witnesses.
b. Ground rules were explained to all witnesses.
c. Evidence was gathered from different witnesses orally or in writing.
d. Questions were put across to witnesses for clarification, verification and validation.
GRIEVANCES BY LT COL M. PHIRI
6. The following grievances proliferated during deliberations with Acting Commandant SA College (Col A. Drost), Chief instructor (Col J.H. Kleynhans), Course leader (Lt Col R.A. Lentsoe) Complainant (Lt Col M.Phiri) and other witnesses. The undermentioned became visible as Lt Col Phiri areas of concern:
a. Lt Col M. Phiri stated that he had a first hand information on the alleged involvement on an instructor (Lt Col) who incites racial conflict on the JSCD Course and wanted to disclose names (implicate people).
b. He alleges (Lt Col Phiri) this conviction in his voice in the SANDF in the current transformation process has been taken away by forces who want to maintain racism in the SA Army College.
He further complained about the alleged institutional racism of the JCSD Branch.
Lt Col Phiri alleged that tiny/minority of white racists are active today in the SANDF and manipulation of many senior black officers leading the units are controlled by the racists and that these racists always have nice stories to tell as supposed proof of their non racialism.
e. Lt Col Phiri alleged that during December 2000 Col B. Kleynhans put him into a study limbo by informing him he is returning him to his mother unit. During January 2001 but he was later (Phiri) informed to carry on with the 30
course so that to gain further experience for further employment in the SANDF this initiative came afore because Lt Col Phiri was underperforming.
f. He alleged that Col B. Kleynhans encouraged a racial split on the course, because a minority white group received an upper hand from him that he was supportive to them (whites) and the majority blacks never were supported by him rather than applying his racial divisive leadership style.
g. That Col B. Kleynhans received telephone calls in the evenings and attacked the class as to what he has received which Lt col Phiri qualifies as/Specimen of Col Kleynhans lecture room verbal attack whereby he 20
abuse students over a lack of professionalism.
h. He further alleges that IG Army namely Brig. Gen E.M. Mashoala did not give him the necessary audience during the initial preliminary investigation at the SA Army College during February 2001.
i. That Col B. Kieynhans mishandled and ill-treated course leader (Lt Col A.R. Lentoe) in front of the whole class.
He further alleges that black students demanded full remarking of their examination products a privilege they were granted after a hard struggle. The examination results showed explicitly that these black OUI were
deliberately marked down so as to allow their white counterparts to obtain 30
the best marks and be recognised as professional and brilliant.
k. He alleges that a double standard is practiced whereby marking of question
papers or products esp during Mobile Phase Evaluation was not equally handle that is marking measures were not the same for all the OUI.
1 Lt Col Phiri wrote a redress of wrong against the Acting Commandant of
the SA Army College over the etiquette of salute (Saluting and compliments) See his pers attached letter dated 08 March 2001.
m. A detail verbal inputs/points are found on his attached letter dated 06 March 2001 for further perusal and investigation.
n. Lt Col Phiri alleges further a retraining offered to him in December 2000 over Xali Weri exercise which he has failed was a falsehood.
o. He alleged he did not refuse a re-evaluation in December 2000 as he was told he did not deserve to have a re-evaluation.
p. He further alleges having been told Feb 2001 that IG Army would listen to all, he never had the opportunity to speak to the IG Army until after his victimisation and 3 charges against him by Army College staff.
FINDINGS
7. The following findings become visible during the discussions with different
witnesses:
a. Lt Col Phiri alleges that he was never afforded an opportunity/audience by IG Armyto put across his concerns. This happened because he submitted his grievance letter after the compilation and completion of the PI at the Army College. IG Army modus operandi wrt PI was explained to Col B. Kleynhans to convey over to OUI and this never materialised hence Lt Col Phiri allegation against IG Army that he was never given the necessary hearing.
b. It become visible during the investigation that Lt Col Phiri did not perform well on the course because he did not prepare nor present his products as per instruction by the course management staff hence Lt Col Phiri had to appear on office bearing and an assessment board. See attached orders documents.
c. SA Army JCSD Branch management staff did not act, talk, address, handle
OUI professionally, accordingly and equally in order to dispel any cloud of suspicion that hanged over the heads of OUI because students saw their actions as encouraging racial drift (CI Col B. Kleynhans) in particular.
d. Mishandling of Lt Col A. Lentsoe by Col B. Kleynhans is unfounded 30
because Lt Col Phiri could not substantiate or give proof as to why this allegation and furthermore Lt Col Lentsoe did not underpin Lt Col Phiri's statement.
e. Lt Col Phiri had a serious problem with Col Drost (Acting Commandant SA
Army College) and Col B. Kleynhans (Chief Instructor JCSD Course) pertaining to discipline hence charges were laid against him. See attached documents.
|
 |
| Eddie Drost The assailant against defencelesss Phiri 7 March 2001, Also, the drafter of the False 11 Charges against Phiri in order to cover up for a well-known fornication-for-promotion by Mandela's cousin W.N. Zini-Bonelo In a normal society,untramelled by the Zuma-era-well-protected Mandelasque Tribalism Favouring the Eastern Cape of The Xhosa-speaking Zini-Bobello who was being potected here, IT IS DROST WHO WAS SUPPOSED TO BE CHARGED FOR ASSAULTING PHIRI. But Jacob Zuma, too used to the abuse of power in the lawless Camps of exile where he was a commander of intelligennce officers who were raping and extra-judicially executng comrades who queried Xhosa camp racism a.k.a. Mandelasque Xhosa tribalism Under Xhosa-speaking Oliver Tambo, Mr Zuma would like even as of this 2012 update, to falsely gain even ill-gotten victory through his courts by unlawfully denying Phiri his right to Equality before the Law of South Africa. Zuma has been consistently and unlawfully denying Civil Servant Phiri the requisite funds to pay lawyers who can prosecute Phiri's case to the fullest. INCIDENTALLY, EDDIE DROST'S OWN CO- WITNESS TO THE STATE, RAYMOND LENTSOE UNDER CROSS EXAMINATION (CLICK HERE AND SEARCH FOR "TUG OF WAR") CONFIRMS ON THIS BLOG AS HE HAD DONE IN COURT: THAT DROST DID ASSAULT PHIRI INSTEAD OF RETURNING A SALUTE WHICH IS THE ONLY WAY A JUNIOR OFFICER IS RELEASED FROM THE PRESECNE OF A SENIOR ONE DURING OFFICE ORDERS AS THE ONES PHIRI WAS PARADED TO BY DROST. Yet to Mr Zuma, as long as I am in his eyes neither a Zulu nor a Xhosa, it is all right I should bE assaulted by clearly racially-motivated and unmilitary practices as evinced by Eddie Drost on 7 March 2001. |
IMPLICATION
8. If a proper investigation by way of a BOI is concluded and all areas of concern are established, rectification plan is effectively implemented a notion of favoritism and unprofessionalism will not be visible and SA Army College will be perceived as a proper learning institution.
RECOMMENDATIONS
9. I, Col S.O. Mokalake (SSO Inspections) recommend that the undermentioned
be effected.
10. That a fully fledged BOI be conducted by neutral people with the necessary legal
and pers trg expertise because of the nature and extent of Lt Col Phiri allegations against the SA Army College Admin/Management staff wrt Lirr) course (reputation of senior military officials is affected.)
11. That SA Army College carry on with legal actions against Lt Col Phiri for his
alleged Sec 46 MDC, conduct top prejudice of military Discipline, Sec 14 (b), MDC, and Sec 42 (b) MDC.
12. That a Board of inquiry be conducted wrt remarking of OUI's examination
products especially wrt under performer been alleged and perceived as a grey area.
13. External markers engaged for re-evaluation on OUI products need to be also
looked into especially wrt to their composition, marking approach, modus operandi and finally their respective credibility pertaining to the marking of OUI examination products
14. SA Army College management staff especially wrt (JCSD Course) needs to put
into practice what they preach to OUI icw "An Adult Approach" and professionalism because this in not 100% visible to all OUI hence their actions are questionable by the OUI.
6 ENCLOSURE 1
SA Army Inspector General Report
RESTRICTED
15. A conducive learning environment needs to be created and visible to all
OUI thus serving SA Army Colleges' core business.
I. 0 • KE)
SingSPECTIONS: COL
Remarks:
E.M. MASHOAL
INSPECTOR GENERAL ARMY: BRIG GEN
Remarks:
(G. . 0)
CHIEF OF THE SA ARMY: LT GEN
DISTR
For Action
GOC Trg Fmn (Attention: Commandant SA Army College)
DI (Attention: Col Fourie)
Internal
File: C ARMY/IG ARMY/R/506/2/6
ENCLOSURE 1 Appendix A
Redress of Wrong Letter from P D Mardon
CONFIDENTIAL
C MLS 1/C/106/29
Telephone: 355-1566 Department of Defence
SSN: 810 Chief Military Legal Services
Facsimile: 355-1146 Private Bag X159
Enquiries: Col P D Mardon Pretoria
0001
12 March 2001
REDRESS OF WRONGS AGAINST BRIG GEN M E MASHOALA: INVESTIGATION OF JCSDC SA ARMY COLLEGE (FEB - MARCH 01) 10
1. Letter from Lt Col G M Phiri dated 06 Mar 01 was referred to this office for comments on 09 Mar 01.
2. The SSO Leg Svcs (Army Office) studied the said letter and documents that were attached thereto.
3. The investigation that was done by the SA Army IG was neither a 15 Board of Inquiry nor a Preliminary Investigation as averred by Lt Col Phiri, but a Commander's Investigation. Such investigations have no formal requirements apart from the general administrative law requirements, of which the most important are that the audi alteram partem-rule must be complied with and the investigating officer must 20 apply his or her mind to all the relevant facts of the case before any
7 ENCLOSURE 1 224
Appendix A
Redress of Wrong Letter
from P D Mardon
inferences or decisions are made, especially if the inferences or decisions are prejudicial.
4. Writer has not seen the Commander's Investigation that was done by Army IG, but from the face of Lt Col Phiri's complaint it appears as if the audi alteram partem-rule was not fully complied with, even though 5
all the members were given the opportunity to document their complaints.
5. One of the aspects covered in Lt Col Phiri's complaint stands out as a substantial allegation which, if proven, could have serious implications for the SA Army College and member(s) involved. This is the allega- 10 tion referred to in paragraph 16 of the attachment to Lt Col Phiri's letter. This allegation, as well as any other substantial allegation that might be made, should be investigated (if it has not yet been covered in the Commander's Investigation.
6. In this regard two options exist. The difference between the options 15 is based upon 2 possible interpretations of the crux of Lt Col Phiri's complaint. Regarding Option 1 it is accepted that the crux of the complaint is the alleged mismanagement of the Commander's Investigation by Army IG, while Option 2 accepts that the crux of the complaint is for Lt Col Phiri to get an opportunity to fully state his 20 complaints and to have these complaints investigated.
ENCLOSURE 1
Appendix A
Redress of Wrong Letter from P D Mardon
CONFIDENTIAL
a. Option 1: New Investigation
i. The letter of. Lt Col Phiri is titled a "redress of wrongs against
Brig Gen M.E. Mashoala", who is the SA Army IG.
Strictly speaking, the matter cannot be further investigated by Army 1G or his subordinates as Army IG is the subject of the complaint.
iii. If it is accepted that the crux of Lt Col Phiri's complaint dated 06
Mar 01 is the alleged mismanagement of the Commander's Investigation then an independent officer must be appointed to investigate this allegation.
Option 2: Continuation and Rectification of the Existing investigation
i. The understanding of the SSO Leg Svcs (Army Office) is that the
crux of the complaint is not the alleged mismanagement of the investigation by Army IG but that:.
(1) Lt Col Phiri expected to be approached by somebody from SA Arrny 1G regarding the complaints of officers under instruction (01U) after he lodged his complaints in writing;
(2) he therefore reserved most of his complaints for such a meeting;
(3) such a meeting never took place therefore he was never given sufficient opportunity to state his complaints; and
(4) what Lt Col Phiri really requires is an-opportunity to fully state his complaints and to have these complaints investigated.
ii. If this is the case, the complaint can be solved by continuing the
existing Commander's Investigation, to grant Lt Col Phiri the
opportunity to give full particulars of his complaints and to investigate the substantial allegations.
iii. This approach will also ensure that the audi alteram partem-rule 30
is fully complied with.
iv. Writer appreciates- the fact that the JC-S-B6 qttestio-n-is
completed and that time to investigate the complaints is limited. However, as mentioned earlier, such investigations have no
Redress of Wrong Letter
from P D Mardon
CONFIDENTIAL
formal requirements apart from the general administrative law requirements. The investigation can be completed in an informal fashion, although the documenting and signing of statements is strongly recommended.
7. Recommendation
The recommendation of the SSO Leg Svcs (Army Office) is that option 2 be followed.
b. In view of the fact that Army IG is implicated, it is also recommended
that C Army be briefed and that he decides on the option to be 10
followed.
c. The complaint was referred to CSAI'-,:DF: therefore he should also be involved with the dec:sion making.
8. It is trusted that the above may-be of assistance.
(COL RD. NIARDON)
TCHLEV Fo`LiTARY LEGAL SERVICES: R ADM
DISTR.
For Action
C Army (SA Army IG)
Internal
CMLS 1/C/106/29
Redress of Wrong Letter from G M Phiri to Chief of Army
Telephone: 0827510206 CONFIDENTIAL
98007693PE
Private Bag 22037 Lyttelton
0140
06 March 2001
Enquiries: Lt Col G M Phiri 5
Chief of the Army Private Bag X172 Pretoria
0001
-()3
REDRESS OF WRONG AGAINST BRIG GEN M E MASOALA IN HIS CAPACITY AS PRESIDENT/CHAIRMAN OF CHIEF ARMY'S PI AT SA ARMY COLLEGE FEB-MARCH 2001
1 The Brig Gen and his staff came to the above-mentioned college some
three weeks ago and requested of us OUI to submit any written 15 grievances for his attention.
2 The explanation was: from that initial written submission, which I duly
completed with the assistance of my fellow OUI, would then individually be called in for further verbal inputs.
10/11 ENCLOSURE 1
Appendix A
Redress of Wrong Letter from G M Phiri to Chief of Army 228
3. Personally I also addressed the Brig Gene to the effect that I had firsthand information on the involvement of an instructor Lt Col who incites racial conflict on the JCSD Course; and that I want to name the names.
4. He assured me I would receive audience. 5
5. Col White in the Brig Gen's office tells me yesterday they will never consider my submission because the case has been closed.
6. My conviction is my voice in the SANDF in the current transformation process has deliberately been taken away by forces who want to maintain racism in this college. 10
7 The Brig Gen, who had the brief to give me back my voice, failed me
in that regard.
Page 11 CONFIDENTIAL
8. He unawares also opened my flank for victimisation by the very racists
I intended to expose. 15
9. Accompanying this letter are some of the ideas I intended to submit to the Pl. I also avail to you a copy of some of the vitriolic lies spread about me in an effort to revenge for my outspokenness against the
institutional racism of the JCSD Branch.
10. Inestimable appreciation will I express if I get a positive response
which I humbly looked forward to.
Lt Col (signature)
(G M PHIRI) 5
OFFICER UNDER INSTRUCTION SA ARMY COLLEGE: LT COL
GMP/GMP
For Info
C SANDF
CJ Support
Army (IG Army) (Attention: Col Khohliwe)
(Attention: Lt Col Mankosi) (Attention: Brig Gen M E Masoala) 10
A/Cmdt SA Army College (Attention: Col E Drost)
SOME OF THE POINTS OF WOULD-BE VERBAL INPUT BY LT COL G M PHIRI TO PI AT SA ARMY COLLEGE 061500BMAR01
1 . INTRODUCTION
"The best way to destroy the average black SANDF officer is to leave
him to his own devices, totally unaided and informed, with the best 5
assistant to him the equivalent of our Corporal, solely under orders to report back to us on the progress of the self-destruction..." (a translated proverb)
2. This is not a mere slogan of the tiny minority of white racists active today in the SANDF. It is the life too many senior black officers are 10 leading in units controlled by the racists. Interestingly, all those racists have nice stories to tell as supposed proof of their non-racialism.
3. December 2000 Col Beyers Kleynhans, CI of JCSD Course Branch throws me into a study limbo by informing me he is returning me to my unit first thing January 2001. I need not study for any re- 15 evaluation as there will be none granted me, he says.
SOME OF THE POINTS OF WOULD-BE VERBAL INPUT BY LT COL G M PHIRI TO PI AT SA ARMY COLLEGE 061500BMAR01
1 . INTRODUCTION
"The best way to destroy the average black SANDF officer is to leave
him to his own devices, totally unaided and informed, with the best 5
assistant to him the equivalent of our Corporal, solely under orders to report back to us on the progress of the self-destruction..." (a translated proverb)
2. This is not a mere slogan of the tiny minority of white racists active today in the SANDF. It is the life too many senior black officers are 10 leading in units controlled by the racists. Interestingly, all those racists have nice stories to tell as supposed proof of their non-racialism.
3. December 2000 Col Beyers Kleynhans, CI of JCSD Course Branch throws me into a study limbo by informing me he is returning me to my unit first thing January 2001. I need not study for any re- 15 evaluation as there will be none granted me, he says.
12/13 ENCLOSURE 1
Appendix A
Redress of Wrong Letter from G M Phiri to Chief of Army 231
5. Little did I know that the man whose brief it was to train and pass me JCSD was in fact on his first phase of his deception-and-lies campaign to try and make me fail the Mobile Phase!
6. That is my side of the general dissatisfaction of the black OUI about
the way we were treated during the mobile phase. My side deserves 5
a hearing too!
7 What deserves even a greater hearing though is the fact that I
discovered the modus operandi of Col Kleynhans' own white racist
network in the Branch to manipulated the affairs of the Course with it.
8. What I am writing about here is not a scoop but an open secret to the 10 OUI and the Branch DS. I subsequently told the course about my personal discoveries around the same issue.
9. I told the Course Leader. I told the Chief Instructor (the brains behind
the clique) that I was going to expose him. I told the Acting
Commandant. I told the Chairman/President of Chief of the Army PI 1 5 and his entourage.
Page 13
10. Who's Col Kleynhans?
To state the obvious, the Army will have his biography. I do not know
whether he came originally from MK, Apla, SADF or any other of those previous amalgams of our National Defence Force. It is not important to me.
11. What is striking to me, and indeed, to most of the other aggrieved students is his very curious mix of a pleasantly sharp intellect 5
characterized by a good grasp of facts both arcane and mundane which he so well complements with a thorough knowledge of his military subject matter as an instructor.
12. This on one hand!
13. On the other hand, he cuts the picture of the very embodiment of a 10 shambles when it comes to leadership; and that is being put mildly.
14. He, in fact, never keeps any cordial officer-like relationship with any
senior black fellow DS officer in the College.
15. Yet he encourages many a Major at OUI level to be buddy-buddy with either him personally or his cell number over the most childish of 15 issues that the adult-minded JCSD course themselves, their commit¬tee, any current module leader or the Course Leader can easily solve.
16. The ethos he created on the Course can be identified through various
G M Phiri to Chief of Army
means. The most fashionable these days being the fact that when Friday parade starts, the drill squads quickly form up either black or white groups with the white group "kaffiring" a lot and simply telling a black officer who misses a step go join your own people now or drill properly. 5
17. The practical shortcomings of his management style has, I trust, been
brought to his attention several occasions before. He believes,
unfortunately, that no fellow officer of a rank lower than a General,
can correct him from his obviously wrong ways of management all "Because", he says, some General somewhere gave him a clean bill of 10 health as a non-racist.
18. Now who is Major Math aka Mufasa?
Major Matli, a doe-eyed and unimposing officer, like Col Kleynhans, makes a first acquaintance with me on this JCSD course.
19. I salute him for the fact that not only has the current JCSD course 15 made friends across the ethnic and colour lines despite the frantic divisive effort of the Col Kleynhans's camp, but we even built an unbreakable rapport with the international fellows, especially with Nigerian wunderkind Capt Omar Mohammed.
20. I have made friends on a professional level with whites on the Course, and so did the other black students; because we know most of them are quite aware of Col Kleynhans's strange, Jekyll-and Hyde behaviour. They find him so comical that they nicknamed him "Mr Armstrong". In the same vein, most of the other white instructors are just on a 5
different wavelength from his when it comes to slighting black officers' contribution or efforts.
21. Since Matli and Kleynhans are such two leadership poles apart, it is easy to see that the human-relations success Maj Matli (Mufasa) made of the course, so well complementing what the college achieved 10 through the Equal-Opportunity (Induction) Phase, is in fact certainly the reason why he earned himself the ire of the racists.
22. The storm in a Swedish tea-cup.
Except for the fact that the course had to host over tea an entourage
of Swedish soldiers visiting South Africa this was just another ordinary 15 day.
23. Mufasa, for his prerogative when VIPs visit us, proceeded to deliver even on this occasion a speech any former MK officer who had been to Europe during the anti-apartheid struggle and was aware of what is happening around him in South Africa today would have equally 20 recited even in his sleep.
G M Phiri to Chief of Army
24. Mufasa painted the picture of the Swedish as having been partners and comrades-in-arms to the warriors who brought down racial rule in the land.
25. This statement of facts, we are made to believe now, angered a few racists only for reasons best known to their sick minds. They never 5
said it then but many moons down the line, when the bigots started to instigate a race riot they mentioned this as one of Mufasa's weaknesses: "He makes political speeches unbecoming of a soldier", the mumbled.
26. Mobile-Phase Evaluation. 10
The Mobile-Phase evaluation was conducted just before we closed for the December month and those who had failed were told to prepare for a re-evaluation January 2001 (you know now I was excluded by order of the CI).
27. It is one afternoon, then, in the month of January 2001 that Mufasa 15
calls his committee to discuss the OUI's unhappiness over the result of the marks for Xali Weri (the Mobile-Phase evaluation). Apparently a resolve is made to engage the DS on this matter. The salvo would be an address by Mufasa to the self-same DS, during the End-Milestone function. 20
14/15 ENCLOSURE 1
Appendix A
Redress of Wrong Letter from G M Phiri to Chief of Army 236
28. The Kleynhans informer in the committee, quickly reported this development to his other contacts. They mobilized and started to cook up the plan that wrong-footed Mufasa, made him look like somebody inciting some revolt and got all the whites huddled together like an endangered species for the rest of the evening. 5
Page 15
29. The fallout from this is what even attracted the Office of Chief of the Army and hence the PI.
30. Among the many other sequels there was a meeting of the DS that called for the ouster of Mufasa, subsequently followed by a Lentsoe- 10 facilitated soul-search exercise conducted by the students.
31. A member of the committee asserted that Mufasa was the cause of the crisis because he had said in a committee meeting "I do not fear whites". She said, in her view, that constituted black racism.
32. She couldn't answer though when I asked why, if she thought Mufasa 15 was a black racist, she did not like an officer of honour stand to be counted and report Mufasa to us 80 other OUI that we fire the racist as we had every right to fire and hire any course chairman.
33. Based on what I had experienced myself as Kleynhans victim together
G M Phiri to Chief of Army
with what I had witnessed and heard in that debate I went ahead to express the opinion to the course that there was no conflict among students.
34. There was, thought, I reasoned, to a standing ovation of the 80 other students the real possibility that either the DS were not getting along 5
well together and decided to choose the students for their battle-field or there was a small group of destabilizers whose job was to target the harmony of the course.
35. I even told them of my discovery of an instructor, the rank of a
lieutenant-colonel who is in the forefront of the distabilization. 10
36. I am deliberately going to town about my contribution to the debate because the Acting Commandant is still to give me the pat on the back he promised if I stand firm to what I know.
37. The whole debate, characterized by great animosity to the point of even a walk-out by an OUI who said it was another futile exercise, 15 culminated with the Course Leader, mooting for the first time the possible institution of a Board of Inquiry, which idea most of us OUI were inspired to hear.
38. I personally was in a process of writing a redness of wrongs against
15/16 ENCLOSURE 1
Appendix A
Redress of Wrong Letter from G M Phiri to Chief of Army 238
Col Kleynhans over his mishandling of my training in the College; but decided to drop the idea as it was clear I would get a better audience with any board of inquiry.
Page 16
39. The Acting Commandat steps in. 5
Indeed, the following week the Acting Commandant announced the institution of a Board of Inquiry from the Chief of the Army. In the presence of Kleynhans and his entire staff, he ordered that no one in his College unit should speak again about the issues causing misunderstanding. 10
40. It puzzles me no end why the Acting Commandant allowed his subordinate, the JCSD Command Branch Commander, to defy that order the very next day or so, in the form of coming to the lecture-room and insulting most of us students, particularly the writer.
41. As an Agnostic, no other cheek was turned by me and I challenged 15
him on those insults. Today my assailant turns to say I am the one
who insulted him as his accompanying document so clearly states.
G M Phiri to Chief of Army
43. Speciman of Col Kleynhans' Lecture-room verbal attack.
It was definitely one of his weakest moments when he came to abuse the students over "lack of professionalism", with an emphasis on the committee "for trying to tell him how to run" the Branch.
44. The Chief Instructor further singled me out for his best venom of the 5
day and I hereunder summarize the drift of that attack and many other shots in the dark (the reader may confirm this with any honest student).
45. "Unlike many of us black officers who want to pass by virtue of our skin colour, he makes a bright student; has gone through courses 10 among the better learning institutions of his country and has every time come tops"
46. If blacks had been offered equal opportunity under the apartheid you brag training under, you would probably be lucky to be a street sweeper today! 15
47. "B matt had proposed Lt-Col Phiri be removed from the course and I humanely defended him by virtue of Phiri's skin colour."
48. You are lying again. You are the one who wanted me out of the school. I had to defend myself to remain on course. In any case do
16/17 ENCLOSURE 1
Appendix A
Redress of Wrong Letter from G M Phiri to Chief of Army 240
not drag my name into your current crises with the student committee. Face it like the man and officer you say you are!
49. "Lt-Col Phiri is attacking the integrity of my instructors."
Page 17
50. It is not Phiri, but their own actions that would bring their integrity into 5
question.
51. "I am going to defend the integrity of my DS with my life."
52. You mean, of course, the white OUI-instigator among your staff because, definitely Lt-Col Martin Sehlapelo whom you've just said alone should he be answerable for any shambles with Xali Weri, 10 cannot have his integrity protected by that very statement!
53. There was a lot of other angry talk which the other OUI can attest to but at the end of this 30 min political brag and mudslinging, the Col walked back to his office turning a deaf ear to students who called loudly for a clarification of his scathing attacks against all and sundry. 15 Efforts to try and get him to readdress the OUI's failed in toto!
54. My request. In his office I asked him for two favours. First, he must stop harming
G M Phiri to Chief of Army
my name. Second, a reminder that Acting Commandant said any one can reserve their contribution for the eventual PI/Board of Inquiry; and I for one was going to participate in that Inquiry.
Conclusion.
I fear nothing but loss of conscience; those who have lost conscience 5
will always spell survival t-r-i-c-k-s; and they delude themselves if they see any leadership role in this army. There's only one way for them to go; out with tails between their legs!
INCIDENT REPORT : 98007693 PE LT COL G M PHIRI (SA INT C)
1. On 06 Feb 01, Lt Col Phiri requested the Course Leader, Lt Col R
Lentsoe for an appointment with the CI JCSD Branch. He was accompanied by the Course Chairman, Maj Matli. He stated that he
was unhappy with the fact that I stated that the Branch was 5
responsible for the recommendation to the Selection Board that he remains on course as it did not correlate with his Selection Board
report which stated that the Branch recommended his withdrawal from the course after failing Milestone 2. I responded by saying that after
discussing his case and the issue of re-training, that the Branch felt 10 that he would gain more by remaining on course, as re-training opportunities in his specific field and at his workplace would be
limited, and thus made the recommendation for him to remain on course.
2 He then added that I contributed to rumours in the Branch by listening 15
to OUI phoning me on my cellular phone. I replied by saying that only one OUI phoned me during the whole course and that as my number was available to the whole course, it was the right of any OUI to contact me at any time.
3. He then said that he did not agree with the way that I do my job. I 20
said that he can not say that, as he was never in my position. He then
shouted: "I am fucking telling you that!". I replied by telling him that he was out of line and thus excused from my office. He jumped up and leant across my desk and shouted: "You are a racist, and I hate racists". I repeated that he was excused upon which he walked out
of my office without paying compliments. I called him back and 5
reminded him to pay the necessary compliments. He saluted and left. His outburst was so severe that even the Course Chairman, Maj Matli reprimanded him to control himself.
4. There are seven incident reports on his file with regards to work not being up to standard. He appeared on office bearing for three times 10 with the CI in this regard. During these occasions he was treated in a humane way as befitting a senior officer. He admitted that he was not up to standard pertaining the Mobile Operations Module, and would have to work at it in the future. This he repeated during his appearance before the Selection Board. During the evaluation he did 1 5 not complete his product and could not pass. He could thus not be surprised by failing the module and by appearing before the Selection Board. Neither could he hold me responsible for his predicament.
5. I am upset about the manner in which he addressed me and swore to me. He did so in front of the Course Chairman, a major and thus his 20 junior. Self-control is a critical competency for any officer in the SANDF and he displayed none of it during this incident. I am even
more upset that he called me a racist. I have been at the SA Army College for eight years, working with most of the General and other Senior Officers of the SA Army. Never could anyone point a finger at me accusing me of racism or racial prejudice. I see this in a very
serious light, not only as damaging and derogatory to me as a person, 5
but also in terms of my seniority in rank, status and my appointment
as the Chief Instructor of the JCSD Branch.
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
APPEAL COURT CASE NUMBER: A474/08
In the matter between:
THE MINISTER OF DEFENCE First Appellant
(First Applicant a quo)
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE Second Appellant
(Second Applicant a quo)
and
GOODMAN MANYANYA PHIRI Respondent
(Respondent a quo)
APPEAL
AGAINST THE WHOLE OF THE JUDGMENT AND ORDER, INCLUDING THE ORDER FOR COSTS, HANDED DOWN BY THE HONOURABLE MR ACTING JUSTICE SITHOLE IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) AT PRETORIA ON 4 APRIL 2008.
LEAVE TO APPEAL HAVING BEEN GRANTED ON 30 MAY 2008.
ON BEHALF OF APPELLANTS
STATE ATTORNEY
Bothongo Heights
8th Floor 167 Andries Street PRETORIA
Tel: (012) 309 1548
Ref: CJ Malan/1235/2004/Z33 ON BEHALF OF RESPONDENT
MSIZA, KRUGER & BEMBE INC 793 Merton Street
Arcadia
PRETORIA
Tel: (012) 342 7282 Ref: MSIZA/J100/04
• .4
VOLUME 4/6
(Pages 245 - 323)
LOM BUSINESS SOLUTIONS (PTY) LTD
t/a SET - LK CONSORTIUM
4th FLOOR OLIVETTI HOUSE
PRETORIA, 0002
TEL: (012) 326-1881
CASE NO: 26284/05
INDEX
Original Appeal
Page No DESCRIPTION Page No
VOLUME 4
ENCLOSURE 1(cont)
Appendix B
19 - 37 G M Phiri's Explanation Letter
dated 2001-03-19 245 - 280
Appendix C
38 - 39 Redress of Wrong Letter from G M Phiri to
Gen Off Commanding dated 2001-03-08 281 - 283
Appendix D
40 - 47 Redress of Wrong Letter from G M Phiri to
Chief of Army dated 2001-03-06 284 - 287
48 Incident Report by JHB Kleynhans (undated) 288
Appendix E
49 - 50 Incident Report by A R Lentsoe
(undated) 289 - 292
51 - 56
57 - 60
61 - 63 Appendix F
Handwritten Statement by B Kleynhans
(undated) 293 - 300
Appendix G
Letter from SA Army College to SA Army Office
dated 2001-02-? 301 - 307
Appendix H
Speech delivered by Course Chairman
dated 2001-01-31 308
Appendix I
64 - 65 Incident Report by G M Phiri (undated) 309 - 313
Appendix J
66 - 68 Copies of Orders from JHB Kleynhans
dated 2000-12-04/? 314 - 316
69 - 75 Incident Reports dated from 2000-10-30
to 2000-12-04 317 - 323
98007693PE: LT COL G M PHIRI'S EXPLANATION TO ACTING COMMANDANT, SA ARMY COLLEGE, WHERE I WAS TUESDAY AND WEDNESDAY
Tuesday:
after reporting and getting a go-ahead I left for home. I heared later that the 5
Training Formation's General (Steyn) came in my absence. But this is not the information I had been notified of. The information had been that that the IG from the office of Chief of the Army was coming and I was finishing up documents of the JCSD racial crisis you so well know about. I wanted to
give to the General concerned for consideration despite the fact that his 10 official investigation was over.
The preparation of those documents took longer that I expected and I found myself overstepping the 3 o' Clock mark I had agreed upon with Lt-Col Lentsoe. I nonetheless did send a message over to Raymond that I was stuck. Since the documents were urgent, and I had definitely and most 15 unfortunately missed the opportunity of meeting a General I would have dearly liked to give me and audience, tool, I proceeded to Army HQ from my house for the purpose of timeously delivering those documents. In that way
I missed making it back to the College.
Wednesday: 20
first thing in the morning I reported to Lt-Col Lentsoe to know if you had
any appointment with me he said no but then proceeded to try and contact you for the arrangement of one.
It did not work out and I went back to the Lecture room where I sat patiently waiting for word if any appointment was due.
There was none. But the lecture-room deteriorated into a hitherto unheard-of 5
verbal abuse of us OUI (please see accompanying incident report) conducted by one Maj Odendaal. I had such a tough time calming down the race-aligned debate that I left the class in disgust.
I will never sit in a class where OUI, by virtue of their skin colour, will insult
all and sundry, Fuck You. 10
So I left to write something about the morning incident corroborating what I keep on saying that Col Kleynhans is in fact a racist who has erected a junta of white majors to disrespect the course, disrespect the committee, disrespect any modular leader, disrespect the course leader and report
directly to him. 15
My mess dress also needed further fixing and I attended to it. If anybody ever said to me the "Commandant want to see you now" I would have abandoned anything I was doing at any given time to answer to that call but this never happened.
SECRET
So yes; I side with Mufasa when he essentially says the Mobile Phase evaluation was a racial shame.
What Mufasa is ignorant about, though, is the fact that that shame lies at the doorstep of Col Kleynhans' office, however much he may try to shift the 5
blame to Lt-Col Martin Sehlapelo, as he consistently does. Or is he
suggesting he is not the Chief Instructor for Martin as well? Which
instructors then does he consistently brag he will defend with his life? Is it only the white folks?
As for the Acting Commandant calling me three days ago to orders over the 10 new written fallacies in that piece of paper, I have a redress of wrongs in the pipe-line for him. I am convinced he is taking sides in an issue he is too informed about to call me for such orders especially as his orders occur some
30 days after the purported incident.
The Acting Commandant was himself Chairing the B-matt meeting where I 1 5 was thrown into a defensive skirmish with Colonel Kleynhans as the Colonel
not only went ahead attacking my officership with falsehoods on paper but actually even insulted the intelligence of our B-Matt guests.
what Colonel Kleynhans had written about me: "I am totally out of depth theoretically and practically and should be taken out of the college to go be taught study methods before attempting the JCSD."
The Acting Commandant also accepted on face value and said Col Kleynhans
had to be right also about the criminally false blotch on my school report to 5
the effect that I "I took a retraining (false) and then refused to take a re¬evaluation".
The Acting Commandant subsequently and very unceremoniously silenced my representative, (formerly APLA) Lt-Col Ngcanga, when the latter wanted
to ask for a clarification on my behalf over those issues. 10
How can the same Acting Commandant now say in his Friday orders he doesn't know the source of conflict between myself and the Colonel and I 'can clarify in writing to him'?
SECRET
THE ORIGINS OF THE LARGER CONFLICT IN THE COLLEGE
A. THE CHIEF INSTRUCTOR WHO WAS TO PLAY RACE-ALLEGIANCE
POLITICS WITH THE YOUNG LION AND GO MAULED FOR HIS TROUBLE 5
I find Col Kleynhans a very curious mix of pleasantly aggressive intellect with a good grasp of facts and knowledge of his subject matter as an instructor on one hand.
On the other hand he cuts the picture of the embodiment of a shambles when it comes to leadership. 10
He consistently goes out to hurt and undermine the good names and progress of black officers while he props up white officers, defending them ("with my life", his slogan goes) when they are doing obviously wrong and divisive things, totally erosive to the espirit de corps the
new SANDF is trying to bolster among its officer corps. 15
This shortcoming of his has, I believe, been brought to his attention several occasions. He believe no fellow officer of a rank lower than a
general can correct him in his obviously wrong ways of management because some general somewhere gave him a bill of health as a non-racist.
Whether he is a dyed-in-the-wool white racist or a person simply enslaved by a weakness of not trusting black officers is up to the events, his participation (or lack thereof) therein, his statements, and 5
the assessment other officers make of him and his ilk.
Prior to the JCSD course I had never met Col Kleynhans before. He will therefore spare me the insinuations I have any vendetta against him or the other fellow-instructor of his who habitually instigate white
students to revolt against the rest of the course: I would be 10
participating in this debate and putting my inset even if he was my
own brother.
Fact of the matter is too many soldiers are dying today in places like Tempe because of practices the likes of Col Kleynhans are involved in.
He must be stopped at his tracks before he continues any further with 15 the canker of racial mistrust he is sowing.
SECRET
MUFASA'S SIDE PASSES MUSTER : THE RACIST CAMP REVOLTS
Major Matli, a doe-eyed unimposing officer and self-effacing former MK officer, like Col Kleynhans, makes a first acquaintance with me on this JCSD course. As a totally colour-blind officer I have no reason except the truth to 5
like or dislike any of the two mutual opponents except what they exhibited during the past seven months.
The current JCSD course OUI body elected Maj Matli in September last year for the Course Chairman. This was in preference to Maj van Oudshoorn and
yours truly. The grape-vine comes to me as if his past record as a course 10 chairman in an All-Arms Course in Lohatla stood him in good stead.
The then All-Arms Course Leader, Lt-Col van Zyl, was ever grateful with my disciplinary support for his work. Even the GOC of that unit, Brig Gen Nkonyeni recognized my no-nonsense approach to poor military discipline in whatever guise it appeared in. 15
I made enemies with black OUI's for refusing to allow any minor run-in with a white OUI as a racist issue. I made enemies with a white instructor or two who either condoned or instigated white racism.
22/23 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 252
Where Mufasa is concerned I'm ready to confess I initially had doubts if he could have enough rapport to unite and keep united the white and black students throughout the eight months of the JCSD course.
I salute him for he turned a mere private prophet of doom of me: Not only
has the current JCSD course made friends across the ethnic and colour lines, 5
we even built an unbreakable rapport with the international fellows, especially with the genius of a captain from the Nigerian Defence Force.
For an example, during one school holiday I personally volunteered and did dine the Nigerian wunderkind at my house. Furthermore I count Majors
Dawie Kriel, Fanus Buys, Anci Barn, van Biljon, Steyn, Johan Veldman, 10 Maureen Buys and many other white OUI's as friends of mine.
Page 23 SECRET
This commendable camaraderie among officers who are earmarked to lead the SANDF through the first half of this century, in my view, (and I have no
apologies for stating this), is what earned Maj Matli (Mufasa) the hatred of 15 the two or three JCSD white racist instructors and the College race rule at large.
They then unashamedly went out to destroy his reputation. They cared not even if in doing so they could easily have started a race riot in the college as virtually happened with the resultant calling for a board of inquiry by the 20
Acting Commandant.
Indeed there is something emblazoned of a racist; and it is that a black officer and a white one cannot live and work harmoniously together for seven months. But then, reality, as was facilitated by Mufasa in this case, rudely proves the racist otherwise. 5
Rather than change his bigoted mind and eat humble pie the racist decides to fight that reality so as to prove right to his own preconceived notions, to change the harmony of the course into a disharmony to fit their preconceived views of race-relations. They should be ousted from the Army College before
any further poisoning of the young officers under instruction! 10
A. MUFASA KEENLYDISPLEASES JCSD CHIEF INSTRUCTOR TWICE TOO
MANY
A STORM IN A TEA-CUP ALA SWEDEN
It was just another ordinary day (except that the course had to host
over tea an entourage of Swedish soldiers visiting South Africa). 15
Mufasa delivered the speech thanking them not only for projects that their country is supporting for our fledgling democracy; but also for the support rendered to the ANC in the former liberation movement's fight
23/24 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 254
against Apartheid.
Mufasa painted the picture of the Swedes as having been partners and comrades-in-arms for all the warriors who brought down the accursed racial rule of those days.
This statement of facts obviously angered the Kleynhans white-based 5
underground committee. This is to surface much later during the near-race-riot which will come later.
Page 24 SECRET
It is quite remarkable that the likes of Col Kleynhans claim they individually were not responsible for apartheid (and we have no reason 10
to believe otherwise) but when statements of historical fact are mentioned they run riot. What a selective amnesia!
This is evident even in the way that Col Kleynhans frequently presents his lectures with insinuated glorification of the days when the SADF
ran the show, coupled with further insinuations that the current 15
Defence Force leadership "does not think". Nowhere was this more glaring than when he attacked in the class certain decisions pertaining to the venue(s) where future senior courses of the Army and the Defence Force will be conducted.
Where should one place the loyalty of a senior officer who attacks policy decision of his superiors, especially when he is daily part and parcel of the decision-making process?
I personally found nothing wrong with the Mufasa address. Taking more consideration for white sensibilities, I, with my journalistic 5
background would probably have used different words to say the same thing. But let us remember Mufasa is a soldier and not many soldiers are gifted with the artful choice of words. Col Kleynhans himself is a good example of a soldier without any gift of any kind of words at leat
if what he habitually writes about me is anything to go by. 10
B. "WHY QUESTION XALI WERI MARKS GIVEN?"
For some time I had wondered loudly how long Col Kleynhans has been working at the Army College because I witnessed last year in Lohatla a shameful sight of JCSD OUI's on a 43-Bde-directed Practical Course where the white students worked alone to present colourful 15
products and the blacks were shunned and left to their own devices by their 'more knowledgeable and computer-literate' white counterparts (the whites had the so-called "cadavers" or previous-course stiffies with answers to the current work).
24/25 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 256
seemed to be saying to me it was all right for a certain Major Payne (now a Lt-Col I understand) to shine me all over my uniform and my face with an electronic pointer. (I still have a document and witnesses of the many other naughty exploits of the white major against me, his senior by rank, which the
43 Bde instructors in Lohatla were trying to forme me into accepting as a 5
normal military culture.
Page 25 SECRET
I am noting this incident as, firstly, I believe it is only through the hands of a very stupid Chief Instructor/Course Leader if he be black and a very racist
one if he be white that a course could have gone through the JCSD module 10 at the Army College and still exhibit those patently unacceptable behaviours
in the way they treat black officers, and their seniors, for that matter. Only a course brewed by a racist team can undermine and sneer at the team-building and the race tolerance among OUI as the Army spends so much
money in fostering on every JCSD course. 1 5
Secondly, I realize some of the defenders of the shame I saw in Lohatla were among the markers of the mobile phase that many of us black OUI were made to unfairly fail on my current Course because of racial bias on the hands of the powerful instructors/Directing Staff of the Army College.
The mobile phase was conducted just before we closed for the December 20 month and those who had failed were told to prepare for a reevaluation
24/25 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 256
seemed to be saying to me it was all right for a certain Major Payne (now a Lt-Col I understand) to shine me all over my uniform and my face with an electronic pointer. (I still have a document and witnesses of the many other naughty exploits of the white major against me, his senior by rank, which the
43 Bde instructors in Lohatla were trying to forme me into accepting as a 5
normal military culture.
Page 25 SECRET
I am noting this incident as, firstly, I believe it is only through the hands of a very stupid Chief Instructor/Course Leader if he be black and a very racist
one if he be white that a course could have gone through the JCSD module 10 at the Army College and still exhibit those patently unacceptable behaviours
in the way they treat black officers, and their seniors, for that matter. Only a course brewed by a racist team can undermine and sneer at the team-building and the race tolerance among OUI as the Army spends so much
money in fostering on every JCSD course. 15
Secondly, I realize some of the defenders of the shame I saw in Lohatla were among the markers of the mobile phase that many of us black OUI were made to unfairly fail on my current Course because of racial bias on the hands of the powerful instructors/Directing Staff of the Army College.
The mobile phase was conducted just before we closed for the December 20 month and those who had failed were told to prepare for a reevaluation
January. For interest's sake I was told personally by Col Kleynhans to prepare for only a return to my unit when I come back in the new year as, according to him, "I had forfeited my right for a reevaluation by virtue of the fact that my product was so incomplete I could not even present by the
deadline". 5
It is one afternoon, then, in the month of January 2001 that Mufasa calls his committee to discuss the GUI's unhappiness over the result of the marks for Xali Weri. Apparently a resolve is made to engage the DS on this matter, all which would start by an address by Mufasa to the self-same DS, during the
End-Milestone function as a way of sensitizing not only the students who, 10 like myself, had not yet become aware of the situation, but to make the DS
look up.
The only white member of the Committee, one of Col Kleynhans.
SEQUENCE OF EVENTS
15
MUFASA IS ELECTED
This was for the OUI a non-event as we elected the gentleman and looked
forward to giving him support in his handling of our affairs. We were only
aware that he was only a servant custodian of our interests, black and white.
25/26 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 258
Without our support, there was no where he could do anything outside our mandate. If he went astray we would, as we did, who him the way; but hose times were few and far between.
Page 26 SECRET
Certainly Major Matli's leadership would be nipped in the bud if as OUI we 5
suspected he was instigating black racism against other students. I for one would have no hesitation in crucifying him if I had the slightest of suspicions as this Defence Force needs racial harmony like air to breathe.
JCSD BRANCH CHIEF INSTRUCTOR GIVEN MUFASA THE COLD SHOULDER
A course committee, to my understanding, is but one very important tool 10 that any course leader can use to ensure success of his effort at passing every one of his OUI. Lt-Col Raymond Lentsoe, the Course Leader, worked harmoniously with the course committee. But alas, his senior, Col Kleynhans
had neither respect for the committee and its chairman nor for XXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 enough", Raymond himself complained on several occasions in front of us
OUI 5.
At best, Col Kleynhans gave the Committee a cold shoulder and at worst he instigated his secret gestapo-like white major on the same course with his cellphone hotline for politicking to habitually debrief a female white member 20
of the committee after every committee meeting. This Major in question is Van Oudshoorn, the same major who was to be instigated by an instructor (Lt Col Wim Smith, they call him, the pipe-smoking cartographist).
The result was that Col Kleynhans would know about discussions taking place in the committee before we as students, who task the committee in the 5
first place, would be given a feed-back.
When it suited Col Kleynhans he launched a counter-attack and for a better term, a preemptive strike. His choice of arsenal has never been officer-like. In fact, some of it, is taken straight from the history pages of the accursed-
former apartheid state. This was definitely the case with the attempted race 10 riot on the course which, after all, party brought about the institution of a board of inquiry.
Whenever these counter attacks occurred us students would be taken aback as to what the issues at hand are. Every so often the OUI, especially the
white ones would become unwitting tools of the struggle Col Kleynhans 15 waged against Mufasa and his own Course leader for being intellectual blacks.
Certainly, this was the unfortunate case with a mature and transformationally clear fiend of mine, the Provost's Major van Niekerk who got so much
26/27 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 260
sucked into the last anti-Mufasa vortex that he started circulating a memorandum along white racial lines, as thinking students saw it. In essence, it would sound from those who read it (I am probably too black to have been even inform by the
Page 27 SECRET 5
Major about its very existence, I suppose) that the memorandum exonerated Col Kleynhans's anti-Mufasa attack.
This is the main reason why the OUI, myself included, hold Col Kleynhans directly responsible for an artificial conflict in the JCSD branch.
WHENCE THE SHOCKWAVES : SWEDES OR MUFASA? 10
I have indicated earlier on one of the supposed sources of supposed unhappiness by white students (another Col Kleynhans-clique fabrication with no basis of truth whatsoever) was "Mufasa's political speech to the Swedes".
But the students do not smash internet computers or tear library books that 1 5 tell them of the support white Europe gave to a black ANC. Why would they
then attack Mufasa for saying what you can find in any source?
The answer is simple: there was no such white dissatisfaction, but the white
have been even inform by the racial trouble-makers supported by Col Kleynhans saw a golden opportunity to instigate white fears; but they were unsuccessful. The best they achieved was to make it easier for me to fail a module due to the tension they created between white and black students.
CHIEF INSTRUCTOR THROWS COURSE INTO CHRONIC TURBULENCE AS 5 HE ERECTS HIS OWN, SECRET, WHITE-ONLY SHADOW COMMITTEE TO CHALLENGE EVERY STEP THE ELECTED COMMITTEE MAKES
I would be doing your reading an injustice if I deny a picture of Lt Col Raymond Lentsoe. Superbly intellectual and extremely sharp-witted on a impeccably professional background. At least that is the picture he cut for 10 the OUI in the past 7 months of his tumultuous captaincy of the course: he
is an intellectual darling of all the OUI.
His nightmare is the fact that his commander, Col Kleynhans, hates his intellectual acumen; and is quick to remind him of his background with one
or other TBVC Defence Force. Unaware that this is the trusted white racist 15 stratagem of dividing and ruling black officers in our new army, or himself having no confidence in the former MK top brass of the SANDF to hope, with
the right channels, his hardship can be resolved for him, he suffers silently when he faces Col Kleynhans without even thinking of instituting a redress
have been even inform by the racial trouble-makers supported by Col Kleynhans saw a golden opportunity to instigate white fears; but they were unsuccessful. The best they achieved was to make it easier for me to fail a module due to the tension they created between white and black students.
CHIEF INSTRUCTOR THROWS COURSE INTO CHRONIC TURBULENCE AS 5 HE ERECTS HIS OWN, SECRET, WHITE-ONLY SHADOW COMMITTEE TO CHALLENGE EVERY STEP THE ELECTED COMMITTEE MAKES
I would be doing your reading an injustice if I deny a picture of Lt Col Raymond Lentsoe. Superbly intellectual and extremely sharp-witted on a impeccably professional background. At least that is the picture he cut for 10 the OUI in the past 7 months of his tumultuous captaincy of the course: he
is an intellectual darling of all the OUI.
His nightmare is the fact that his commander, Col Kleynhans, hates his intellectual acumen; and is quick to remind him of his background with one
or other TBVC Defence Force. Unaware that this is the trusted white racist 1 5 stratagem of dividing and ruling black officers in our new army, or himself having no confidence in the former MK top brass of the SANDF to hope, with
the right channels, his hardship can be resolved for him, he suffers silently when he faces Col Kleynhans without even thinking of instituting a redress
SECRET
His only avenue for his frustrations is the course, and perhaps rightly so, as all the attacks he endured from Col Kleynhans came via the faceless gestapo element in the course was being used to discredit him as an incompetent
course leader. 5
This is not the entire skeleton in the cupboard of Raymond. He unfortunately habitually drinks and stinks liquor on the job with the resultant forgetfulness of his tasks as a course leader. He is also notorious for sleeping with female OUI in exchange for doctoring their performance.
White Racism, Sex for Marks/Preferential Treatment and Drunkenness is 10 apparently a chronic sickness of the Army College where the DS is concerned. What shocks the current leadership into victimising us with charges on false accusations is the fact that never before had they faced a more robust opposition to the scandalous behaviour.
At the end of the day, these weaknesses are some of the tools that Col 15 Kleynhans (and now recently Col Drost, the Acting Commandant) use to subvert Raymond with to the extent that he, together with the racists, fabricates lies about my supposed "AWOL's", "threatening behaviours against superiors" and other fabrications currently to be heard by a military court against me. 20
MOBILE-PHASE MODULE UNDERPERFORMED BY BLACKS OVERPERFORMED BY WHITES AND MUFASA CRIES FOUL
As indicated above the Mobile Phase was conducted prior to the Festive Season. Three points, in my view, made it so different from other
evaluations where blacks and white students, unlike most other courses of 5
this level and lower were not only performing in a homogenous way.
1. Xali Weri was evaluated by external examiners who, themselves might have their own racial baggages that they brought along to bear on the course; and there was no check-and-balance mechanism to monitor that. 10
2. This was one of the very few courses where evaluation could only be conducted with the OUI's true identity, which probably spelled open season to white racists to fail black OUI and unfairly advance whites.
3. The reevaluation was to be conducted over 30 days later, when the school reopened in the new year. No OUI need have failed this phase, 15 except if Col Kleynhans and his ilk had deliberately led him to, which turned out to be the case with me.
SECRET
The committee picked up a mark-allocation anomaly and a process was started by the committee to investigate the causative and a cure by engaging the JCSD DS Branch.
Save for crass racism that indeed had something to hide about the mark 5
allocation of Xali Weri, and unless the Kleynhans sympathizers give a plausible reason (Kleynhans himself dismally failed to give a reason), it will always puzzle and boggle your mind why the Chief Instructor unleashed such a ferocious, lethal, racially explosive and superbly orchestrated arsenal of
dirty tricks against a legitimate query by the Committee. 10
I for one will not rest until I find an answer or Col Kleynhans pays for his dangerous blink fury he unleashed against a mere major in the process endangering the Army College with racial conflagration. This is so because because I love the Defence Force too much to ignore the exposure of its underminers and worse for them, they happened to hatch the disruptive plan 1 5 within my earshot.
ANTI-MUFASA MEMORANDUM AND WHILE DS/OUI CALL FOR HIS OUSTER
I do hear that subsequent to the address Mufasa gave on that fateful
Wednesday evening over the "foul play" on Ex Xali Weri a white-instigated
29/30 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 265
memorandum was circulated for signing night hours.
I never saw the contents or the shape of that document but I think that was an illegal exercise and there is nothing to me that suggests that was not the continuation of the white-supremacist ploy (employing even a few black
puppets) instigated by Col Kleynhans to oust Mufasa and get the students' 5
xali-Weri reservations silenced.
In any case, any document, to earn respect and legitimacy, must be announced to all the students (this was the case with the document I signed No 7 to book my place with the Board of Inquiry which curiously only now
happens as of this writing even though the CIO's white, secret-police OUI 10 again quickly went to report to their Master, and Lt-Col Sibaca was roundly abused by the Chief Instructor for doing his committee-assigned duties), and indeed, duties that the Inspector General himself had ordered be done! Documents should not be signed secretly in the bungalows at night, as was
the case with the anti-Mufasa document. 1 5
Page 30 SECRET
Having met a blanket of silence as to why black students are of the opinion this is the document that caused the Acting Commandant to call for a Board of Inquiry. This in itself puts the Acting Commandant as a co-player in the
Kleynhans dirty tricks. Whether this is true or not, it does cast the acting 20 commandant in a dark light in so far as acting promptly and decisively on
hearing one incident of white-instigated complaint while leaving unattended a more legitimate complaint they have of a Chief Instructor who not only puts race priority above the all of his duties, but actually instigates white officers against black control.
There are other extraordinary measures the Commandant has since involved 5
himself in to victimise me, but I am prepare to meet him to even the highest curt in the land about is, as, indeed he has decided to charge me for no other reason but my outspokenness.
Unfortunately the Army's reputation and indeed that of the SADF at large is going to suffer in the process of those court battles. I am not going to be 10 cornered in a military court on the basis of fabrications by an ungentlemanly agreement ("hide my sins I will hide yours") that is fast taking shape among
Cols Droste, Kleynhans ad Lt Col Lentsoe.
LT-COL RAYMOND LENTSOE : THE COURSE-LEADER THE POLITICKING CHIEF INSTRUCTOR HABITUALLY SADDLES WITH THE DIM HISTORICAL 15 BAGGAGE OF THE APARTHEID ERA
The morning of two after Mufasa had delivered his anti Xali-Weri address Lt Col Raymond Lentsoe arrived in the class to facilitate yet another soul search over the perceived misunderstanding on the course.
30/31 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 267
Once more, for the umpteenth time, the Course informed him that the OUI as a unit have no problems of getting along as such, but that the DS did have big big problem of their own.
Having known little about the secret-memorandum machinations overnight
yet sure in my mind that I personally witnessed the hatching up of the whole 5
racial confrontation even before Mufasa addressed it, I for the first time informed the course of what I knew.
The white female member of the committee asserted that Mufasa was the cause of the crises because he had said in a committee meeting "I do not fear whites". She said, in her view, that was black racism. 10
Page 31 SECRET
She couldn't answer though when I asked her why, if she thought Mufasa was a black racist, she did not like an officer of honour stand to be counted and report Mufasa to us 80 other OUI that we fire the racist as we had every right fire and hire any course chairman. 15
students and the OUI.
I am deliberately going to town about my contribution to the debate because the acting commandant is still to give me a pat on the back for helping him expose the racial rot in his school, certainly Col Kleynhans, as you will see
with the reading below, has no intention of shaking my for my standpoint 5
and exposing his henchmen gimmicks on that day. In any case, the destructive tone of the letter accompanying this letter is evidence of the man's thinking processes.
The whole debate, characterized by great animosity (and even a walk-out by
an OUI who said it was another futile exercise), culminated with the Course 10 Leader mooting for the first time the possible institution of a Board of Inquiry, which idea most of us OUI were inspirited to hear.
ACTING COMMANDANT ORDERS "THE USAGE OF ONE SHOOTING RANGE" : THE BOARD OF INQUIRY.
Indeed the following week the Acting Commandant announced the institution 1 5 of a Board of Inquiry and a plea was made anyone who had anything to say about the current situation could reserve it for contribution to the Board of Inquiry.
one should pursue on his school these matters as he had now opened the right avenue to contain the fratricide in his unite; the JCSD Branch had to stick to its core business of learning and instructing.
It was a plea for professionalism and the commandant executed the order with a brevity (exactly 60 seconds) and a conciseness ("Be professional 5
soldiers") of a true professional himself.
Page 31a SECRET
However, as I will elucidate in the next paragraphs, I was to learn at great pain that his order did not apply to his Junior Branch Commander. Awares
or unawares, the Acting Commandant wrong-footed me in a process I was 10 already instituting against the CI for not only having failed in the Mobile Phase, but continuing to pen baseless lies and falsehoods on my course report etc.
CI IGNORES ORDER GOES INTO LECTURE ROOM AND "SHOOTS AT RANDOM IN FRONT OF 80 STUDENTS IN A RACIALLY-FLARED MANNER". 15
It was definitely one of Col Kleynhans's weakest moments when he came to abuse the students over "lack of professionalism", an emphasis on the committee "for trying to tell him how to run" the Branch.
I hereunder summarize the general flow of the verbal attack(the reader may confirm this with any honest student).
1. rumours, rumours, the course had to stop the rumour mongering.
(My counter-proposal would be he is the one to stop the rumours as he is the father of all rumour that ever caused racial tremors on the course). 5
2 Three officers (including, I assumed, Maj van Oudshoorn, the anti-
mufasa con-instigator) who were brought to him for disciplinary steps
by the committee he "forgave them not because they were whites
brought by a black-dominated committee; but he forgave them
because there was also a black major among the culprits". 10
(My counter-proposal would be you strictly charge a wayward major whether he is purple or crimson. I further would put it to the Course Leader that the real reason he never endorsed the committee's legitimate plea was the fact that one or all of those culprits were part of his gestapo that informs on the
committee to him and he could not afford to bite the hand that feeds him. 15 He is a man who is ready to sacrifice the noble norms of the SANDF to satisfy his individual interest of turning the Army into his private race fiefdom
if his words are anything to go by - "I will defend them with my life")
31a/32 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 271
a non racist.
(My counterproposal would be you do not live by endorsements; respect the uniform you and your fellow officers are wearing, stick to the Code of Conduct and respect of the supreme non-racial democratic law of the country
- the Constitution - as any officer worth his name ought to on behalf of the 5
State President and you will never go wrong)
Page 32 SECRET
4. Unlike many of us black officers who want to pass by virtue of our skin colour, he makes a bright student; has gone through courses among the better learning institutions of his country and has every 10 time come tops.
(My counter proposal would be: You went to those institutions because of the internationally outlawed, nefarious, pole-cat constitution of the old South Africa. If blacks were offered an equal opportunity you would probably be
lucky to be a street sweep; so do not brag about unfair advantages you had 1 5 in the past).
5. Selection Committee had proposed Lt-Col Phiri be removed from the JCSD course and Col Kleynhans came to Phiri's rescue by virtue of Phiri's skin colour.
(My response: You are lying again. You are the one who wanted me out of the school. I had to defend myself to remain on course. In any case do not drag my name into your current crises with the student committee. Face it like the man you claim to be).
6. Lt-Col Phiri is attacking the integrity of my instructors. 5
(My response: It is not Phiri, but their own actions that would bring their integrity into disrepute. Lt Col Phiri will always live by the Code of Conduct and will spare no mercy for those who are dividing the SANDF along racial lines, like Lt Col Wim Smith, the instructor, and Maj van Oudshoorn, were discovered by Phiri right in the thick of it). 10
7. Col Kleynhans is going to defend the integrity of his DS with his life. (My response: It does not surprise me. You are the instigator and I will make sure your own words become a reality because I will expose you to the Department and they will have to deal with you if you refuse to change). At the end of this 30 min political brag and mudslinging the Col walked to his 1 5 office turning a deaf ear to students who wanted a clarification of his scathing attacks against them.
"STUNG BY MANY OF THE MISSILES I GO AND PLEAD WITH CI NOT TO SHOOT AT ME BUT TO HELP GET TO THE ACTING COMMANDANT'S SHOOTING RANGE."
Realizing that Col Kleynhans was not prepared to come back and clarify his 5
statement, I asked both the student leader and the course leader to accompany me to him. My intention was to make him see I did not hate him or any body per se in his DS but the actions I discovered them involved in and my intention during the resulting session was attained.
1. Since I honestly did not know of any rumour that he, of all people, 10
could order us to stop I asked for a clarification of what he meant. After staring me in the face blankly as I repeated what he meant, he ended up saying he doesn't know what were the rumours of who told him the rumours. He said everything came from Lt-Col Lentsoe.
2. I asked him if he does not have white majors who, to the detriment of 15
the Course Leader and the Committee, to say nothing of the larger course, are law unto themselves because he gave them a cellphone hotline to discuss with him rumours which he took to be hard facts with which he then confronts his Course Leader to make the latter look incompetent. 20
3. He said he had never done it except on the days of the near race-riot.
I asked him if his informer major had also revealed to him that one of his white instructors was the cause of the riot that was fed to him over the phone.
5. Again he looked at me with blank eyes. 5
6. I proceeded to tell him that I principally came to tell him I was one of the people who were going to contribute to the Board of Inquiry instituted; and can he and his Course Leader please facilitate that for me so that the IG can once and for all help the School to clear its act.
7 I told him I was going to point to nobody else but him as the cause of 10
all the perceived misunderstanding because of his racially divisive leadership style.
8. He then said I was threatening him to which I pointed out that I
believed in no secrecy and that is the reason I was telling him in advance of what I was dying to tell the board of inquiry. 15
9. I proceeded to tell him I wish him to stop unfairly dragging my name into the whole race riot conflict he had on his hand because nothing was ever going to stop me telling the authorities what I had discovered his instructor doing, inciting a student against the course. 5
10. I also told him I never passed or wish to pass a course by virtue of affirmative action or my skin colour and I view it as an insult when he makes such insinuations about mein front of 80 majors in the lecture room.
Somewhere in his writings against me the Colonel claims I called him a racist. 10 I am sure he refers to the strength of my arguments which I still maintain in
this letter and that argument is what Stokely Carmichael (Kwama Toure), the author of the term "Black Power" said that a white man who simply hates blacks is not necessarily a racist; but a white man who wields enough power
to substantiate his hatred of blacks by negatively influencing their lives and 15 does so, is a pure racist. I make no apology for saying Col Kleynhans fits
that description, but I never called him a "Racist" in the face, nor did I use the F-word as he and Raymond Lentsoe seem to be saying today.
I move further the argument that the Training Formation commendably
34/35 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 276
tolerance at the beginning of a JCSD course.
This man, who obviously has no respect for tax-payer's money goes ahead and nullifies all the good work that the Training Formation's programmes are set to achieve. Yet he calls himself the Instructor of an important branch in the college! 5
As I am writing this some black students already and wrongfully call all the whites in the college OUI or DS XXXXXXXXXXXXXXXXXXXX because of the reign of race Col Kleynhans has been propagating for our course, with the assistance of only a couple of wayward white majors and the support of Wim Smith the Lt-Col instructor. 10
When one looks at the white majors whom he has obviously infected with the virus of white supremacy, one shudders to think that chances are good they will go back to their respective units through the length and breath of South Africa to treat their fellow officers as second fiddle due to no other reason except that the victims will have a black skin! 15
I ask myself, are chief instructors like Col Kleynhans not the perfect models to the young majors on how to keep the "kaffir" in his right place?
The only last thing I ought to revisit is the "fucking" allegation. If I left the lecture room with a less than noble intention in seeing the chief instructor I would not have invited witnesses to my own demise. 5
Again, the colonel is making his reputation good as liar on paper and I put to him now as he makes the case after a whole month of the incident that he is talking these new lies to try and discredit me and my evidence to the board of inquiry.
With this input I want to connect his imputed complaint that I had brought 10 a major (Math) to complete my humiliation of him in front of a junior officer.
May I remind him that, unlike him who paid not respect to the legally instituted person of a Course Chairman, I invited mr Matti by virtue of that capacity of his.
I am definitely not his kind of an officer who, unprovoked, will like he did in 15 Lecture-room 4, denigrate a Lt-Col in front of scores of majors.
If Matti heard that I insulted the Course Leader he would laugh. If he heard the supposed insult was so much along the order of copulation and skin colour that he had to stop me, he will have a stomachache!
35/36 ENCLOSURE 1
Appendix B
G M Phiri's Explanation Letter 278
These are just lies and the sooner the army stops this man from causing himself further misery the better for us all. On humanitarian grounds I feel deep compassion over this man's self-mutilation. He is, after all, my fellow officer.
Because of the sheer pressure of the work we had at the time we were 5
supposed to submit a request in writing to see the Board of Inquiry, 41 of a
total of over 50 OUI who wanted to see the Board opted to prepare one
document as a means of booking our place in the Board of Inquiry sessions.
Page 36 SECRET
I also put my name in it. I was never called till this writing. In fact I picked 10
a charge for trying to communicate with the office of the IG. That is why until the falsified charges the Army is now levelling against me, there is no way I will stop with the redress of Wrong against, notify the person as such, but the institution of the office of the Inspector General.
There is no integrity in charging me essentially for demanding what the army 15 tells every soldier to do: "Speak out and we will protect you from
victimisation"
CONCLUSION
Col Kleynhans, the Acting Commandant calls me to one of his usual orders where he never returns my salute (Raymond confided in me in our happier days, "Col Eddie Drost says integrated members of former MK and APLA are not worth their rank")
The acting commandant puts to me he has two options: 5
1. get Col Kleynhans and me solve the problem amicably within the
college
2 he institutes a Board of Inquiry over the matter.
I told the commandant I am not prepared to have any gentlemanly agreement
over the matter because I viewed the happenings in his school in such a 10 serious light that I wanted the office of the IG to hear my story too.
The Acting Commandant subsequently ordered me to go and write my version of what had happened in the office of Col Kleynhans.
From that day the Acting Commandant started hounding me, imputing that
ZI should ask for permission from him every time I leave the college, etc. 1 5
SECRET
Accompanying this statement is a number of other documents as follows:
1. Redress of wrong against the Acting Commt
2. Explanation of my whereabouts
3. Incident Report in class
4. Milestone Speech
5. Course Debrief
6. Irregularities 5
These should help the office of the IG understand the other aspects of my presentation not effectively covered by the above.
THANK YOU
...(signature) Lt Col 19/03/01
LT COL G M PHIRI
98007693PE
G M Phiri to Gen Off Commanding
CONFIDENTIAL
Telephone: 0827510206 Enquiries: Lt Col G M Phiri
General Officer Commanding SA Army Training Formation Private Bag X172
Pretoria
0001 98007693PE
Private Bag 22037 Lyttelton
0140
08 March 2001 5
10
REDRESS OF WRONGS AGAINST ACTING COMMANDANT OF THE SA ARMY COLLEGE OVER THE ETIQUETTE OF SALUTE
1. On an habitual basis now whenever the Acting Commandant of the SA
Army College, Col E Droste, calls me to orders, which is common since 15 last Friday the 2nd of March he never returns my salute.
G M Phiri to Gen Off Commanding
2. Yesterday, for an example, when I repeatedly requested for a return of
my salute before I march out from his orders, he left his seat threatening to physically eject me from his office rather than return my salute.
4. I am of the opinion this is unacceptable especially for an officer who 5
is right now investigating charges against me for allegedly refusing to pay salutes to another officer senior officer.
5. Lt Col Raymond Lentsoe was present during the orders yesterday and he is the one who actually stopped the Acting Commandant from making physical contact with me. 10
6. I believe even adjacent offices heard my repeated plea for a salute back and I should dearly appreciate a speedy response on this matter because I see more orders emanating from the Colonel before this course ends.
G M Phiri to Gen Off Commanding
7 I say this because I believe his frequent orders are part of constructive
charges against me but at least professionalism should be maintained.
...(signature) Lt Col
(G M PHIRI)
OFFICER UNDER INSTRUCTION SA ARMY COLLEGE: LT COL 5
Army (IG Army) (Attention: Brig Gen M E Masoala)
A/Cmdt SA Army College (Attention: Col E Drost)
G M Phiri to Chief of Army
CONFIDENTIAL
Telephone: 0827510206 Enquiries: Lt Col G M Phiri
Chief of the Army Private Bag X172 Pretoria
0001 98007693PE
Private Bag 22037 Lyttelton
0140
06 March 2001 5
10
REDRESS OF WRONG AGAINST BRIG GEN M E MASOALA IN HIS CAPACITY AS PRESIDENT/CHAIRMAN OF CHIEF ARMY'S PI AT SA ARMY COLLEGE FEB-MARCH 2001
1. The Brig Gen and his staff came to the above-mentioned college some
three weeks ago and requested of us OUI to submit any written 15 grievances for his attention.
2 The explanation was: from that initial written submission, which I duly
completed with the assistance of my fellow OUI, would then individually be called in for further verbal inputs.
40/41 ENCLOSURE 1
Appendix D
Redress of Wrong Letter from G M Phiri to Chief of Army 285
3. Personally I also addressed the Brig Gene to the effect that I had
firsthand information on the involvement of an instructor Lt Col who incites racial conflict on the JCSD Course; and that I want to name the names.
4. He assured me I would receive audience. 5
5. Col White in the Brig Gen's office tells me yesterday they will never
consider my submission because the case has been closed.
6. My conviction is my voice in the SANDF in the current transformation
process has deliberately been taken away by forces who want to maintain racism in this college. 10
7. The Brig Gen, who had the brief to give me back my voice, failed me
in that regard.
Page 41
8. He unawares also opened my flank for victimisation by the very racists
I intended to expose. 15
9. Accompanying this letter are some of the ideas I intended to submit to
the Pl. I also avail to you a copy of some of the vitriolic lies spread about me in an effort to revenge for my outspokenness against the
G M Phiri to Chief of Army
institutional racism of the JCSD Branch.
10. Inestimable appreciation will I express if I get a positive response
which I humbly looked forward to.
... Lt Col (signature)
(G M PHIRI) 5
OFFICER UNDER INSTRUCTION SA ARMY COLLEGE: LT COL
GMP/GMP
For Info
C SANDF
CJ Support
Army (IG Army) (Attention: Col Khohliwe)
(Attention: Lt Col Mankosi) (Attention: Brig Gen M E Masoala) 10
A/Cmdt SA Army College (Attention: Col E Drost)
42-47 ENCLOSURE 1
Appendix D
Redress of Wrong Letter from G M Phiri to Chief of Army 287
ALREADY PART OF THE RECORD
(See page [s] 230 - 241)
48 ENCLOSURE 1
Appendix D
Incident Report by JHB Kleynhans
ALREADY PART OF THE RECORD
(See page [s] 242 - 244)
CONFIDENTIAL
SA ARMY COL/C/103/2/1 2000 02
SA ARMY COLLEGE
JCSD BRANCH
INCIDENT REPORT ON LT COL G M PHIRI : 06 AND 07 MARCH 2001 5
On the 2nd March 2001 Lt Col Phiri appeared Office Orders before the A/Commandant SA Army College, Col E F Drost on the allegations tendered against him by the Chief Instructor (CI) JCSD Branch (Col J H B Kleynhans). The decision made during the Office Orders were that Lt Col Phiri must
submit to the A/Cmdt on 050700B Mar 01 his version to the effect of 10 allegations tendered against him.
On Monday 05 March 01 the CI JCSD Branch asked me whether Lt Col Phiri did submit his statement to Col Drost or not. As I have not seen Lt Col Phiri that morning I pledged with the CI to allow me time to find out which he
consented to. I left after the conference to look for Lt Col Phiri. 15
I met Lt Col Phiri on the day in question and informed him that he must submit the document to Col Drost as per agreement. Lt Col Phiri indicated to me that he has not yet submitted but will fetch the document from his car for submission. Later during the day Lt Col Phiri informed that the Lt Col
Phiri is to appear before Col Drost again iro the findings of Col Drost 20 following the statements he received.
The morning of 06 March 01 I informed Lt Col Phiri that I am going to con¬firm with Col Drost as to when can I bring him (Lt Col Phiri) for the decision. He (Lt Col Phiri) indicated to me that he would in any case during the day go and mend his mess dress for the Certificate Ceremony on 07 March 01.
Later that morning at 1205B, when I arrived back in office I received Col 5
Drost's phone call instructing me to bring Lt Col Phiri to his office at 1230B.
I set out to the rooms to look for Lt Col Phiri but in vain. I then went back to Col Drost to inform him that I could not find Lt Col Phiri anywhere in the unit and he gave me a leeway to bring him any time when I can find him.
One of the OUI gave me his cell no (0827510206) which I phoned about four 10 times but each time answered by the voice mail. I left a message that he must come and see me on the issue of going to Col Drost but he never turned up. At or about 070701 B Mar 01 Lt Col Phiri came to my office and handed to me an envelope addressed to Col Drost. I informed him that he must not go elsewhere as his attendance of the office orders at Col Drost is 15 a priority following his failure to turn up the previous day. He indicated to
me that he is going to wait for me in the lecture room and attend the roll call period to which I consented. I left my office following him to the down stairs floor. He went in the lecture room and I went past to Col Drost's office to arrange for the time of the office orders with the Col. 20
On arrival back from Col Drost I continued with my routine tasks as the Col was still busy with his communication period with the senior course Cl.
49/50 ENCLOSURE 1
Appendix E
Incident Report by A R Lentsoe 291
I left the envelope I
Page 50 CONFIDENTIAL
received from Lt Col Phiri with the Admin clerk of the Senior Branch as well as the message that I will bring Lt Col Phiri once the Col is free to attend to
him. The CI phoned me icw Lt Col Phiri's attendance at Col Drost. I 5
immediately left for the lecture room but could not find Lt Col Phiri in the class. The OUI on duty explained to me that Lt Col Phiri left the class earlier
on but told nobody where was he going to. I then sent one OUI (Maj Erasmus) to help me look for the Lt Col but all failed.
During the cause of the day at or about 1115B all OUI except Lt Col Phiri 10 arrived at the Wildebees mess for dress rehearsals for the certificate ceremony as per Weekly programme and clearing out Admin Order. At or about 121 5B Lt Col Phiri arrived at Wildebees mess while the rehearsals were
long in process. I indicated to him that i will, directly after the rehearsals, would like to handle off his office orders at the A/Cmdt and he affirmed. 15 After the rehearsals I then accompanied Lt Col Phiri to the office of the A/Cmdt for Office Orders where things did not go well as Lt Col Phiri refused
to answer questions put to him by the A/Cmdt. He indicated that he wish to see his Lawyers before aligning himself to anything expected of him ito
the reasons for the orders. 20
that he is excused from his office and he left. I left the office of the A/Cmdt and went back to the Wildebees mess where final preparations were being done and reported back to the CI JCSD Branch what transpired at the could have been Office Orders.
A R Lentsoe (signed)
(A R LENTSOE)
COURSE LEADER: LT COL
ARL/diy
51 ENCLOSURE 1 293
Appendix F
Handwritten Statement by B Kleynhans
RESTRICTED
Response to the document Lt Col Phiri submitted to IG by Col J H B Kleynhans
1. I would like to start by saying that never in my military career of 21
years and during my service at the SA Army College have I been 5
accused of any of the alleged actions as stated by Lt Col Phiri.
2. Par 3. He was informed an office hearing (as is the custom that due to the fact that he did not obtain 80% during his evaluation. He did not qualify for a re-evaluation. Only bridging-training OUI can do a re¬evaluation if they have obtained less than 80%. Lt Col Phiri did not 10 even complete his product thus he obtained far less than the required 80%. He was granted a re-evaluation by the Selection Board and was
marked by Lt Col's Lentsoe
He dismally failed once again. The seven office bearing and incident reports represents his performance during the Mobile Phase. 1 5
3. Par 6. The Ex instructor Lt Col M Sehlapelo's organised this phase in an excellent way. I would like to know what the problems were, except for utilising outside workers from ACTC, 43 Bde and Army Office due to the limited time available as result of the local elections.
4. Par 6. What clique? I would like to see evidence of this phenomena. 20
51/52 ENCLOSURE 1
Appendix F
Handwritten Statement by B Kleynhans 294
5. Par 7. I strongly object to this statement. It is damaging to my integrity as officer and to my character. If it can not be proven strong disciplinary measures must be instituted. The SA... can not allow "wild" allegations like this presented without substance.
Page 52 RESTRICTED 5
6. Par 13. This must be compared with the opinions or experience of my colleagues, my merits and record.
7. Par 14. This statement is totally subjective. This can be confirmed with the DS at the College.
8. Par 15. I only received one private phone call during the time 10 preceding this investigation. It was from the Spitoon (?) the course committee during my attendance of a Strategic Planning Session informing me about the speech by the Course Chairman. I referred him to the Course Leader which was the acting Cl at that stage. Who were the buddies? I maintained a clear distance between me and the 1 5 OU/.
9. Par 16. This is the responsibility of the Course and an internal arrangement coordinated by the Course Leader. I have no influence on this activity.
52/53 ENCLOSURE 1
Appendix F
Handwritten Statement by B Kleynhans 295
10. Par 17. I see this statement once again as insulting and subjective.
11. Par 19. What "camp"? What grounds does he have to make a statement like this? I had no private agenda, sub groups, camps or any other motive plan to present a successful course and to maintain standards. 5
12. Par 20. Once again a vindictive statement, insulting me and citing the white instructors. Which examples are mentioned to prove this point.
13. Par 28. A subjective statement. No one appeared on office bearer without being brought to orders by the Course Leader.
Page 53 RESTRICTED 10
14. Par 33. On what grounds does he say this? His record pertaining to incident reports, office hearing, low standard of performance and not adherence on achieving standards, result... in his office bearing and appearance before the selection board. I always treated him in a humane and officer-like way. He admitted an on orders (in the 15 presence of Lt Col Lentsoe) for not having the knowledge to pass the Mobile Phase. He once again stated that during his appearance before the selection board. Even when he shouted at me in my office I remained calm and requested him to leave because he was out of line.
53/54 ENCLOSURE 1
Appendix F
Handwritten Statement by B Kleynhans 296
15. Par 35. Name him and the incident.
16. Par 38. This only happened when he failed. Why did he come up with this document of mud slinging only after his orders at the Acting Commandant pertaining to his conduct in my office?
17. Par 39. I was not present. I was attending a Strategic Planning 5
Session at Nest close to Hartebeespoortdam. One of the
many wrong presentation in this document.
18. Par 40. I addressed the course four days later, stating the facts of the Examination Exercise.
19. Par 43. He confuses two occasions. During Oct 2000 I addressed the 10 course on aspects that required attention at that stage eg unprofessional handling of course funds, deductions and failure to repair the floor of the WSL. A student remarked that I should work through the course committee. I then stated that I will decide when to speak to the course directly. 1 5
Page 54 RESTRICTED
20. Par 44. I only referred to him to illustrate that we intend to give any OUI a second chance, rather than to put him off course. The reason to this, what was referred to him as venom, was to provide him with
54 ENCLOSURE 1 297
Appendix F
Handwritten Statement by B Kleynhans
the opportunity to exposure to develop, rather than send him back to his line of work where he would have no tectical exposure.
21. Par 45. I deny saying this. I stated that I have no intention of failing people, nor has the Branch. Our success lies in the amount of people who pass courses, not those who fail. The pass rate of 85 out of 87 5
officers is proof of it. I referred to my achievements on courses to prove that I have no hidden agenda, but that my record speaks for itself. I never referred to "black officers".
22. Par 46. This is a clear indication of his personal attack and hostile attitude towards me. 10
23. Par 47. Not true! I never played off B Matt with the decisions of the Selection Board. I never said that he was defended because of his skin colour - I repeat I used him as an example to demonstrate that each officer will get all the possible opportunities to pass, remark on course and be granted the opportunity to develop within the guidelines 15 of the Training Policy.
24. Par 48. I see this as a defiant challenge of my seniority.
25. Par 49. Untrue! I never said that.
54/55 ENCLOSURE 1
Appendix F
Handwritten Statement by B Kleynhans 298
26. Par 52. I never threw Lt Col Sehlapelo to the wolves. I merely said that he was the Exercise Leader how can
Page 55 RESTRICTED
allegations of discrimination and racism be made with the examination exercise. Once again this statement is pulled totally out of context. 5
27. Par 53. I stated the side of the Branch. My tone and message was under control and factual. No "angry talk" was part of the discussion. All the instructors were present and I was complimented by them afterwards on the professional way I handled the situation. I did not want to open another lengthy debate as the case was going to be 10 investigated by the IG.
28. In conclusion I would like to state /never victimised Lt Col Phiri or any other OUI. I never had any sub-surface spying, informing,
organisation, feeding me with clandestine information. I never had informed channels to me by any specific group, white or other. There 1 5 is thus a misrepresentation in the document of Lt Col Phiri and the findings of the investigation team. All OUI that spoke to me were doing so through the Course Leader on official orders. The letter submitted to me by the Catering member on the Course Committee, did so through the process of office bearing. When I scrutinized 20
the OUI on rumours, the examples of which I mentioned a few
55/56 ENCLOSURE 1
Appendix F
Handwritten Statement by B Kleynhans 299
like DS having relationships with female OUI, OUI that were feeded examination information etc, were obtained through the DS or by means of DS that were Ex Leaders or the Course Leader.
29. The documents by Lt Col Phiri is totally out of line and full of inaccuracies. I see it as an unfounded attack on my person, me 5
seniority and position as CI of the JCSD Branch. I have trained more than 800 senior officers at the SA Army College why would I suddenly change into a subjective racist with no
Page 56 RESTRICTED
leadership qualities and no management skills? I see this as an effort 10
to kick up dust and to threw mud in order to hide his own incompeten¬cy as displayed during the Mobile Phase, his total lack of self control as displayed in my office, in the office of Col Drost and towards the class when he allegedly shouted at them "F..k you all!", before
storming out of the class curing the last week of the course. / 15
challenge Lt Col Phiri to prove his allegations and if not I request that certainly specific recommendations should be made by the office of IG to rectify the gross display of ill discipline, damaging of character and hate speech, portrayed in this document. Why did he only made an
effort to submit this document after his office bearing with the 20
misconduct in my office? I refer you to his incident report and office bearings record to judge his performance and to interview Col E Drost
56 ENCLOSURE 1
Appendix F
Handwritten Statement by B Kleynhans
on this officer shouting at him, challenging him in his office.
J H B Kleynhans ...(signed)
(J H B Kleynhans)
Cl JCSD BRANCH: COL
CONFIDENTIAL
Telephone: 012 - 674 4073 Enquiries: SA ARMY COL/C/106/94 SA Army College
Course 701 G37 200002 Private Bag X1002
Thaba Tshwane
0143 5
February 2001
The Inspector General
SA Army Office 10
Pretoria
0001
General
IRREGULARITIES IN THE JUNIOR BRANCH ADMINISTRATION :
COURSE 701 G37 200002 15
1. Your address on 6 Feb 01 to OUls of the above mentioned course has
reference.
2. We the undersigned OUls wish to state the following:
a. It is proper to state that the retrospective experiences by the
undersigned OUls in their different Corps schools of excellency 20 has clearly implied that the "black" contingent of the SA Army cannot perform and reflect good and meritorious performance in
their studies. This is a deliberate ploy to undermine their
intellect.
57/58 ENCLOSURE 1
Appendix G
Letter from SA Army College to SA Army Office 302
b. This has been vindicated by repeated irregularities exposed by affected OUls within the "black" community, who form time to time demanded full REMARKING of their examination products, a privilege they were granted after a hard struggle. The
examination results showed explicitly that these "black" OUls 5
were deliberately marked down so as to allow their white counterparts to obtain the best marks and be recognised as "PROFESSIONAL/BRILLIANT ails.
c. This is completely devoid of truth and is an old dirty trick by an overwhelmingly white administration to undermine and 10 demotivate the Black contingent.
Page 58 CONFIDENTIAL
d. Against this background the undersigned took the trouble to ensure their academic well being by electing a committee that was given mandate to implement working systems that would 1 5 level the playing field in terms of the following:
i. Use of English language as a medium of instruction for the
advantage of all groups.
ii. Introduction of the Exam Number System which
dividends in that results reflected a fair distribution of an objective allocation of marks across the colour line.
iii. It has been our conviction that the white instructors in
collaboration with white OUls connived for the artificial
betterment of the white OUls to the detriment of the 5
black OU1s.
e. The JCSD Administration has had all the changes and power to
prove us wrong, on the contrary, the following has happened throughout the course:
The Chief Instructor (CI) JCD Branch has on several 10 occasions allowed the white OUls to jump the course committee, exercise leader and the course leader to communicate their selfish concerns directly to him thereby breaking the military disciplinary decorum.
ii. This has from time to time spoiled the relations amongst 15 the OUI community.
iii. Furthermore there is evidence to the effect that white instructors incite white OUls to render the course ungovernable.
58/59 ENCLOSURE 1
Appendix G
Letter from SA Army College to SA Army Office 304
iv. The CI could not take decisive action against white OUls who persistently transgressed set course regulations.
v. The White OUls are always treated with "kid gloves".
vi. The practical evaluation of EX XALI WERI became the
only avenue open to the white instructors to arrest the 5
situation to their advantage.
vii. Suddenly the white OUls became the best in their large numbers whilst the black OUls gave the worst performance.
CONFIDENTIAL 10
viii. Some white OUls with the collaboration of white instructors have made all the endeavours possible to frustrate the smooth functioning of the course committee.
ix. This is in fact not a complete surprise, because from inception the CI could not conceal his rejection for the 1 5 committee in that out of the membership of the Commandant's entourage, he was the only individual who deliberately failed to by way of hand shake congratulate the committee members as it was done by the rest of
the Commandant's entourage. That could not escape our minds, but still we gave him the benefit of the doubt.
3. Hitherto the actions of the CI are indicative of his rejection for the committee.
4. On the strength of the above the undersigned OUls fully align 5
themselves with the content of the address of the Chairperson delivered on Wednesday 31 Jan 01.
5. Allegations that the speech is the source of the crisis are incorrect and malicious.
6. The reaction of some white students and white instructors on the day 10 of the speech was a recurrence of a rift as old as the Course.
7 It must be emphasised that the speech of the Chairperson was directed at the JCD Branch Administration with respect to elements of irregularities characterised by racial prejudice.
8. As a terms of reference black instructors both as witnesses and 15
victims of the irregular conduct of the administration must be afforded the opportunity to air their views in this matter.
9. Another term of reference is the frustrating experience of one OUI
(there may be several more), Col Baartman who has on a number of occasions returned for a single module, the very subjective EX XALI WERI. After his evaluation within the current course he had still failed
EX XALI WERI. On resorting to outside intervention surprisingly he 5
passed with a considerable wide margin compared to the initial mark.
CONFIDENTIAL
10. In conclusion the undersigned OUls hope that this submission shall
authenticate a full scale investigation bmo a Board of Inquiry with the aim of corroborating evidence derived from allegations cited above.
(See following pages)
OFFICERS UNDER INSTRUCTION SA ARMY COLLEGE JCSD 701 G37 200002: 5
61-63 ENCLOSURE 1
Appendix H
Speech delivered by Course Chairman 308
ALREADY PART OF THE RECORD
(See page [s] 156 - 158)
INCIDENT REPORT : THE COLONEL'S BLUE-EYED BOY TELLS 80 OUI
"FUCK YOU, LET'S GO AND RESOLVE MATTERS WITH KLEYNHANS:
1 . On 7 March, an hour or two after I had been to the Course Leader to
find out if by any change the The Acting Commandant wanted to see
me that day or, for that matter, had wanted to see me the previous 5
day; and an hour or less after roll-call parade, the OUI were briefed by student Committee of a number of aspects pertaining to the current close-down activities. As usual, it was a harmonious adult approach of satisfying queries especially for the purposes of ending a challenging
course sweetly. 10
2. After about an hour's characteristically mature query-and-clarification exercise between the OUI and their Committee, an OUI asks if a matter could be handled by the course that revolved around Maj Odendaal's previous grievance.
3. The course affirms. 15
4. Two OUls proceed to make contributions and I personally am not sure of the purpose of the exercise, nor am I sure about the Maj Odendaal's particular complaint under discussion.
5. So I make the following contribution: "I want to confirm you fellow
OUls are in this instance referring to Maj Odendaal's sports-related complaint a week or two ago?
6. The course affirms.
7. "Then would it not only be fair that before you deliberate any further
on the matter that you ask Maj Odendaal two questions: firstly being 5
that, since, he had had expressed the intention to go and see the Chief Instructor over his bitterness has he already done it since that period?
In case he responds to the affirmative, then did he get the satisfaction
he had wanted? In that case does he see the need of us today basically reinventing the wheel trying to satisfy him when he has 10 already received satisfaction from Col Kleynhans?
8. Maj Odendaal: "Yes it was about the day we supposed to go to sport. The Spot's Member for the Committee has no right to tell me what sport to play. (for benefit of reader, the course administration had in fact given Maj Mancotywa the authority to order certain sports be 15 played and it was the norm that an official parade was held by the Maj.) Secondly, the way the sports preparations were made on that day was very poor. I had the ball with me and was supposed to bring it."
9. The Major sits down.
10. An OUI: "Col Phiri's legitimate question has not yet been answered,
Major Odendaal. Have you been to Col Kleynhans? Have you got satisfaction? Should we continue to belabour your complaint on this day and hour?" 5
11. Maj Odendaal: Yes, I did talk to Col Kleynhans ... but not on this issue
... Let us stop this now because I see where it is leading to."
12. An OUI: "You have, Maj Odendaal, a serious complaint about the way you have, as you said, been mishandled by the Committee. Suddenly Col Kleynhans grant you audience, but you decide to discuss other 10 matters except the one you said to the course you were going to discuss with Col Kleynhans in the first place. Do you really want us to believe you really had a problem to be solved or you were just sowing seeds of discord on the course?
13. I stand up again and plead with the class to now stop the discussion 15 since Maj Odendaal had already retracted from his complaint; and I didn't want to sit on class where the racial championed by the CI would flare.
14. OUI makes contribution and prolongs the discussion.
15. Maj John Khumalo makes a further plea along my line of pacification
to the effect that people respect Maj Odendaal choice of withdrawing his complaint from the house. He reminds us we are all adult and should be able to tolerate one another's viewpoints.
16. Maj Odendaal, in a fury: "Fuck you, fuck you, you all come with me 5
to Col Kleynhans, let us resolve the matter! Fuck you! Fuck you! Follow me to Col Kleynhans!"
17. Another OUI asked: Nobody has ever verbally abused other officers on this course in this manner. Is this then a correct way of address?
18. "No, it's not" I respond in sheer shock. "And you, gentlemen, must 10
decide if you want to build this Defence Force or you want to shoot at one another as you are doing now. I am sick and tired of this madness caused by the idiocy of the manner command and control is executed on this course. Worse, no one want to give me audience about this this racial intolerance fomented by the Cl. 1 5
19. "Fuck you! Fuck you! Especially you John Khumalo. Let us go and see Col Kleynhans now."
21. Maj Odendaal followed me saying I must also go with him to Col Kleynhans to which I declined and walked away from him.
Copies of Orders from JHB Kleynhans
CONFIDENTIAL
SA ARMY COLLEGE
JCSD BRANCH
ORDERS
Page No: 5
Force No: 98007693 PE Rank: Lt Col
Name: G M Phiri Corps: SAINTC
Unit: Date: 4/12/00
REASONS: MEMBER DID NOT PREPARE A PRODUCT FOR HIS EXAMINATION PRESENTATION OF BATTLE PLAN FOR EX XALI WERI 10
REMARKS/DECISIONS BY CHIEF INSTRUCTOR JCSD BRANCH
The implication of not presenting is spell out to the officer. The officer acknowledges a lack of fundamental knowledge as the primary problems. He will not qualify for a re-evaluation. He will thus appear before the selection
board. 15
JHB Kleynhans (signed)
(J H B KLEYNHANS)
CHIEF INSTRUCTOR JCSD BRANCH : COL
REMARKS/DECISION BY THE COMMANDANT SA ARMY COLLEGE
20
(M E PETANE)
COMMANDANT SA ARMY COLLEGE: BRIG GEN OFFICER UNDER INSTRUCTION:
 |
| Mxolisi Edward Petane |
Copies of Orders from JHB Kleynhans
CONFIDENTIAL
SA ARMY COLLEGE
JCSD BRANCH
ORDERS
Page No: 2 5
Force No: 98007693 PE Rank: Lt Col
Name: G M Phiri Corps: SA INT C
Unit: Date:
REASONS: See attached Incident Reports
REMARKS/DECISIONS BY CHIEF INSTRUCTOR JCSD BRANCH 10
Warned once again he will not pass and must drastically improve.
JHB Kleynhans (signed)
(J H B KLEYNHANS)
CHIEF INSTRUCTOR JCSD BRANCH : COL
REMARKS/DECISION BY THE COMMANDANT SA ARMY COLLEGE 1 5
Copies of Orders from JHB Kleynhans
CONFIDENTIAL
SA ARMY COLLEGE
JCSD BRANCH
ORDERS
Page No: 1 5
Force No: 98007693 PE Rank: Lt Col
Name: G M Phiri Corps: SA INT C
Unit: Date:
REASONS: Work during Ex Napoleon not up to standard. Products have not been completed, officer is not ready to present. 10
REMARKS/DECISIONS BY CHIEF INSTRUCTOR JCSD BRANCH
Seriously reprimanded.
JHB Kleynhans (signed)
(J H B KLEYNHANS)
CHIEF INSTRUCTOR JCSD BRANCH : COL 1 5
REMARKS/DECISION BY THE COMMANDANT SA ARMY COLLEGE
Incident Reports
PHOTOSTAT COPY (Not Accurately Transcribable)
INCIDENT RECORWINSIDENTORBLAG: 701 037200001
NUMBER: RANK:
NOMr t R ' • WI
af: A:Nal AA M:
TRAINING PHASE/F'ASE VAN OPLELDING
70 ENCLOSURE 1
Appendix J
Incident Reports
PHOTOSTAT COPY (Not Accurately Transcribable)
701 iI3..-.46:11001
• 4
4, = j•it' iii.
11! Ng / • NT rt",
• t 1 "rialto:
t*,,ae
,1`---ef Nit
„, • f. 1.1A•or.,
•
• .4•:,?4•-•• • .„,•••• 1•014 • •
. •; •"€..
.I " •
....Y.'. • ,
'01)11-
.0-r.i•izr ; ';
Im
1.24re173: OYa I .C37 .7. 11!.f ,.J ACTIVITY:
ATITIWITETT: • 66-
• ^ .• • • ,
71 ENCLOSURE 1 319
Appendix J
Incident Reports
INCEDENT RECORD/INSIDENTVERSLAG: 701 G37200001
NUMBER:
NOMMER: RAM NAME:
RANC1:1-Hdol NAAM: C.)
TRAINING PEASE/FASE VAN OPLEMING
DATE: MUM'S: ACTIVITY:
DATUM: I (I (Oo OEFENING: AKTIWITEIT: 0 6C !>',='eir-
rtEmiPiRicsiormiitYAKIENGF?
The member does not understand what is BFS or BFS orders at all. The sequence as well as what he prepared does not allow any marking at all.
FG-N-TaTaili7.171.DTETIF117; OUTIOOE
INSTRI,ICTORANSIR
72 ENCLOSURE 1 320
Appendix J
Incident Reports
INCIDENT RECORD/INSIDENTVERSLAG: 701 G37200001
NUMBER: RANK:NAME:
NOM ER:---- RANGVC/ 0 NAAM: 7/1"fi.
TRAINING PHASE/FASE VAN °FLEMING
DATE:f,OCERCISE: ACTIVITY: fik,
DATUM: /5-/// OEFENING: Li-A-T/4,1 AKTIWITEIT: r I188C .1,s'L
REMARNSIOPMEIIKING:3
1. LT COL
2. HE DID
3. TO SEE
Y.NCIDENT ;'ORININSIDENTY EMAG: 701 637200001
NUMBER: RANK: NAMB:
NOMMER 11.ANG:11NAAM:
TRAIN= PHASE/WM VAN' OPLEIDING
DATUM: e) 0 TiNcs:
ItriMARICS/OMMIKITIGO
Member did not prepare any product.
DICIDLM RECORWINSIDENTMIMAG: 701 637200001
NUMBER: RAMK:j
R.A.NO.4g
NAME:
NAAM:
TRAINING PIIASENASE VAN OPLEIDING
DATE: e, MaRCISE:
DATUM: S OEIEVING:
REMARMWOPMEMUNGS
Member did not prepare work - excuse that he did not
SIQNKFURVI-IANDTEICENINT: OWOQI
75 ENCLOSURE 1 323
Appendix J
Incident Reports
PHOTOSTAT COPY (Not Accurately Transcribable)
!NCIDENT RECOMMNSIDENIVERSLAG: 701 G37200001
NUMBER:ce NAME: NOMAE11:"?al"----&-/-r -6' RANG: 1-'6" NAAM:
TRAINLNG PHASE/VASE VAN OPLEIDING
DATE: 1:3:URCISE:
DATUM:4, OEFEN1NG:
REMARICS/OPMERKINGS ACTIVITY:A /
mciawrrErr:neil'5`
(1) WORK NOT FINISH. NOT READY TO PRESENT ORDERS.
rn
\!
SIGNATURMNDTEKENING 013110QI
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
APPEAL COURT CASE NUMBER: A474/08
In the matter between:
THE MINISTER OF DEFENCE
DIRECTOR, MILITARY PROSECUTIONS, DEPARTMENT OF DEFENCE
and First Appellant (First Applicant a quo)
Second Appellant (Second Applicant a quo)
GOODMAN MANYANYA PHIRI Respondent
(Respondent a quo)
APPEAL
AGAINST THE WHOLE OF THE JUDGMENT AND ORDER, INCLUDING THE ORDER FOR COSTS, HANDED DOWN BY THE HONOURABLE MR ACTING JUSTICE SITHOLE IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) AT PRETORIA ON 4 APRIL 2008.
LEAVE TO APPEAL HAVING BEEN GRANTED ON 30 MAY 2008.
ON BEHALF OF APPELLANTS
STATE ATTORNEY
Bothongo Heights
8th Floor 167 Andries Street PRETORIA
Tel: (012) 309 1548
Ref: CJ Malan/1235/2004/Z33 ON BEHALF OF RESPONDENT
MSIZA, KRUGER & BEMBE INC 793 Merton Street
Arcadia
PRETORIA
Tel: (012) 342 7282 Ref: MSIZA/J100/04
• • 40...
VOLUME 5/6
(Pages 324 - 427)
LOM BUSINESS SOLUTIONS (PTY) LTD
t/a SET - LK CONSORTIUM
4th FLOOR OLIVETTI HOUSE
PRETORIA, 0002
TEL: (012) 326-1881
CASE NO: 26284/05
INDEX
Original Appeal
Page No DESCRIPTION Page No
VOLUME 5
ENCLOSURE 2
67 Certificate of Investigation (undated) 324
77 Index 325
78 - 79 Convening Order dated 2001-03-06 326 - 329
80 - 83 Affidavit by J H B Kleynhans
dated 2001-03-07 330 - 335
84 91 Affidavit by R Lentsoe dated 2001-03-07 336 - 346
92 - 93 Affidavit by G M Phiri dated 2001-03-07 347 - 349
94 - 96 Affidavit by K E Math dated 2001-03-07 350 - 353
Annexure A
97 Incident Report by J H B Kleynhans (undated) 354
98 Order form dated 2001-03-02 355
99 - 104 Report by G M Phiri (undated) 356 - 367
105 - 107 Summary of the Statements of Witnesses (undated) . 368 - 373
108 - 111 Findings and Recommendations by Commander's
Investigation Team dated 2001-03-08 374 - 379
112 Remarks by Acting Commandant (E Drost)
(undated) 380
113 Remarks by GOC Training Formation (D Steyn)
(undated) 381
ENCLOSURE 3
114 Order form dated 2001-03-02 382
115 Incident Report by J H B Kleynhans (undated) 383
116 - 121 Incident Report by G M Phiri (undated) 384
Original Appeal
Page No DESCRIPTION Page No
122 Order Form dated 2001-03-02 385
123 - 130 Redress of Wrong Letter from G M Phiri to
Chief of Army dated 2001-03-06 386 - 389
131 Copy of Order from JHB Kleynhans
dated 2001-03-06 390
132 Incident Report by JHB Kleynhans (undated) 391
133 - 134 Incident Report from E F Drost dated 2001-03-07 . . 392 - 393
135 - 136 G M Phiri's Explanation Letter dated 2001-03-19 . . 394 - 395
137 - 138 Incident Report on G M Phiri by A R Lentsoe 396
139 Letter from E F Drost iro G M Phiri
dated 2002-04-16 397
Appendix B
140 Signal Message Form dated 2002-12-12 398
Appendix C(i)
141 Letter from G D Spammer to B Q P Simelane
dated 2003-06-24 399
Appendix C(ii)
142 Internal Letter from G I Slabbert
dated 2003-07-02 400
Appendix D(i)
143 Letter from S Oosthuizen to SA Army
dated 2001-06-06 401
Appendix D(ii)
144 Letter from L Brandsen iro G M Phiri
dated 2001-07-16 402
Appendix A
145 - 149 Open Letter from G M Phiri to The President
dated 2003-07-18 403 - 407
150 - 151 Fax from SA Army College to K Boshoff
dated 2003-07-29 408 - 409
Original Appeal
Page No DESCRIPTION Page No
164 - 168 Report on Alleged Racial Disharmony (undated) . . . . 416 - 420
169 - 175 ENCLOSURE 4
Minutes of JCSD Assessment Board Meeting
dated 2001-01-30 421 - 427
76 ENCLOSURE 2 324
Certificate of Investigation
CERTIFICATE OF
INVESTIGATION
NO : 005/01
SA ARMY COLLEGE
Recording Officer 5
Lt Col G J Anker
Member
Lt Col D Maswanganyi
77 ENCLOSURE 2 325
Index
CONFIDENTIAL
INDEX
Serial Subject 5
1 Certificate of Investigation No: 005/01
2 Index
3 Convening Order No 005/01
4 Witness 1 10
5 Witness 2
6 Witness 3
7 Witness 4
8 Annexure A
9 Summary of the statement of the witnesses (Concl by the 15
Commander's Investigation Team)
10 Findings and Recommendations by the Commander's
Investigation Team
11 Remarks by the Acting Commandant, SA Army College
12 Remarks by MLO 20
13 Remarks by the GOC Training Formation
RESTRICTED
SOUTH AFRICAN NATIONAL DEFENCE FORCE
CONVENING ORDER (CERTIFICATE OF INVESTIGATION)
CONVENING ORDER NO: 005/01
BY 5
COL E F DORST, SA St c (ARMY)
ACTING COMMANDANT SA ARMY COLLEGE
Telephone: 012-6744003 Enquiries: Capt R Botha SA Army College Private Bag x 1002 Thaba Tshwane
0143
6 March 2001 10
1. The person indicated herein below are hereby ordered to conduct a
Certificate of Investigation on a date and place to be determined by the Commandant SA Army College for the purpose of investigating the 15 circumstances that led to the Insubordination and disrespect towards
Col J H B Kleynhans by Lt Col G M Phiri, OUI on the JCSD course. This incident occurred on 06 February 2001.
RECORDING OFFICER
MEMBER
94828076PE Lt Col D Maswanganyi, SAIC
2 The recording officer shall, before the investigation commences,
ensure that they are familiar with the stipulations of the SANDFPC/E/V/XXVI and Rule 79(10), (14), (16) and (17), Sec 137(1) 5
and Sec 140(2) MDC and Policy Directive C Army/GS1 /27/94 and that they consistently apply them.
3. The aim of this investigation is to determine the following:
a. The circumstances that caused the specific consequence.
b. Who was responsible? 10
c. The consequences that it may have for the SANDF.
d The steps necessary to prevent a repetition and/or alleviate the
consequences.
e. Corrective measures, including disciplinary steps to be taken.
f. Any related matters which may be brought to the board's attention during the investigation.
4. The following must be stated in full:
a. Full particulars of the events including place, time and date. 5
b. Whether the events can be ascribed to intent, negligence, irregularity, lack of discipline, or neglect to obey orders and instructions.
c. The extent of any loss or damage (if applicable).
d. Whether any loss, damage (including damage to the name of the 10 SANDF), death or injury of a SANDF member, whether it happened while on duty and in the execution of official duties (if applicable).
e. Credibility of evidence.
5. The investigation must reach conclusions and make recommendations 15
in respect of paragraphs 3 and 4.
6. The original of the record must be handed in to the Adjutant on or before the 08 March 2001. If this appears to be impossible, the recording officer must apply in writing for postponement within three days of target date.
7. The original must be handed to the Adjutant after completion. The 5
adjutant will than check it and ensure that the Pres are to correct it. After the Commandant SA Army College is finished with his recommendations the Adjutant will make copies and distribute it as required.
8. The recording officer may under no circumstance make statements 10
that could compromise the SANDF. He must refrain from discussing the merits of the case or to disclose the possible or actual findings of the investigation to any member of the SANDF or public.
Signed at Thaba Tshwane on the 6 day of March 2001.
...(signature) 15
(E F DROST)
ACTING COMMANDANT SA ARMY COLLEGE: COL
AFFIDAVIT OF WITNESS NUMBER ONE
I, Force Number 77516003 PE Col Jan Hendrik Beyers Kleynhans, residing at 23 Vlakvoeltjie Street, Rooihuiskraal, and employed as the Chief Instructor at the Junior Command and Staff Duties Course at the SA Army College ,
Thaba Tswane declare that I have been informed of my rights in terms of 5
Rule 88 MDC and that I was properly sworn in terms of Sec 137(1)MDC states under oath the following:
On 06 Feb 01, Lt Col Phiri requested the Course Leader, Lt Col R Lentsoe for an appointment with the CI JCSD Branch. He was accompanied by the
Course Chairman, Maj Matli. He stated that he was unhappy with the fact 10 that I stated that the Branch was responsible for the recommendation to the Selection Board that he remains on course as it did not correlate with his Selection Board report which stated that the Branch recommended his withdrawal from the course after failing Milestone 2. I responded by saying
that after discussing his case and the issue of re-training, that the Branch felt 15 that he would gain more by remaining on course, as re-training opportunities
in his specific field and at his workplace would be limited, and thus made the recommendation for him to remain on course.
He then added that I contributed to rumours in the Branch by listening to OUI phoning me on my cellular phone. I replied that only one OUI phoned me 20 during the whole course and that was after the speech by the Course Chairman. I also replied that my number was available to the whole course
and it was the right of any OUI to contact me at any time if he/she
experienced a problem. He also said that I have said that I will stand by the instructors and die for them until proven wrong. He than said that I will die as he heard an instructor telling another OUI that they must discredit the course chairman, but he will tell that to the Board.
He then said that he did not agree with the way that I do my job. I said that 5
he can not say that, as he was never in my position. He then shouted: "I am fucking telling you that!". I replied by telling him that he was out of line and thus excused from my office. He jumped up and leant across my desk and shouted: "You are a racist, and I hate racists". I repeated that he was
excused upon which he walked out of my office without paying 10 compliments. I called him back and reminded him to pay the necessary compliments. He saluted and left. His outburst was so severe that even the Course Chairman, Maj Matli reprimanded him to control himself.
There are seven incident reports on his file with regards to work not being up
to standard. He appeared on office bearing for three times with the CI in this 15 regard. During these occasions he was treated in a humane way as befitting
a senior officer. He admitted that he was not up to standard pertaining the Mobile Operations Module, and would have to work at it in the future. This he repeated during his appearance before the Selection Board. During the
evaluation he did not complete his product and could not pass. He could 20 thus not be surprised by failing the module and by appearing
before the Selection Board. Neither could he hold me responsible for his predicament.
I am upset about the manner in which he addressed me and swore at me. He did so in front of the Course Chairman, a major and thus his junior. Self-
control is a critical competency for any officer in the SANDF and he displayed 5
none of it during this incident. I am even more upset that he called me a racist. I have been at the SA Army College for eight years, working with most of the General and other Senior Officers of the SA Army. Never could anyone point a finger at me accusing me of racism or racial prejudice. I see
this in a very serious light, not only as damaging and derogatory to me as a 10 person, but also in terms of my seniority in rank, status and my appointment
as the Chief Instructor of the JCSD Branch. I now also hand to the Commander's Investigation Team the Incident Report marked "Annexure A".
Questions by the Commander's Investigation Team:
Question 1: Why did you not proceed to formally charge Lt Col Phiri of 15 contravening Art 17 of the MDC in regard to his behaviour that he displayed towards you as a senior officer.
Answer: An Board of Inquiry that was done by the office of the Inspector General was conducted at that time to investigate an related incident where
Lt Col Phiri was involved and I thought that it would have been wrong to 20 proceed in that direction whilst this board of inquiry was still investigation these related issues.
No further questions by the Commander's Investigation Team.
JHB Kleynhans... (signed)
SIGNATURE OF WITNESS NUMBER ONE DATE: 07 March 2001
In reply to the questions put to me by the commissioner of oaths, I also 5
declare:
a I know and understand the content of the above confirmation.
b. I have no objection to taking the prescribed oath; and
c. I consider the prescribed oath as binding on my conscience.
Page 82 10
2. Thus declared and signed by me after pronouncing the prescribed oath
on the 07 day of March 2001 at Thaba Tshwane.
JHB Kleynhans... (signed)
SIGNATURE OF WITNESS
DATE: 07 MARC 2001 15
...(signature)
SIGNATURE OF THE CHAIRPERSON: COMMANDER'S INVESTIGATION TEAM
DATE: 07 MARCH 2001
...(signature)
SIGNATURE OF MEMBER: COMMANDER'S INVESTIGATION TEAM
3. 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 07 day of March 2001 at Thaba 5
Tshwane.
...(signature)
EX OFFICIO COMMISSIONER OF OATHS
Full name of commissioner of oaths Gert Jacob Anker
in his/her own printed handwriting 10
Business address of the commissioner of SA Army College
oaths in his/her own printed handwriting
Rank and Arm of Service of a commissioner of Lt Col 73357105PE
oaths appointed ex officio.
RIGHTS OF THE WITNESS
SEC 137(1) MDC CERTIFICATE
The witness is informed regarding the contents of Sec 137 (1) MDC in that he/she is not obliged to: 5
a. Make any statement that can be detrimental to him/her, or
b. Answer any questions that can incriminate him/her,
with reference to the incident being investigated.
The witness take cognisance of the contents of Sec 137 (1) MDC.
...(signature) 07/03/2001 10
WITNESS DATE
... (signature) 07/03/2001
PRESIDENT DATE
I, Force No 94725678 PE Raymond Lentsoe, an officer residing at 11 Danie Theron Street, Thaba Tswane Ward and employed at the SA Army College as the Course leader at the Junior Command and Staff Duties Course, declare that I have been informed of my Wrights of Rule 88 MDC and that I was
properly sworn in terms of Sec 137(1) MDC states undcr oath the following: 5
confirm the following:
On 06 February 2001 Lt Col Phiri came to my office with the course chair person and requested me to make an appointment for him with the Chief Instructor Col Beyers Kleynhans, in regard to his dissatisfaction following the Chief Instructors address to the course that morning. I went to the Chief 10 Instructor's office and conveyed Lt Col Phiri's request to Col Kleynhans, Col Kleynhans consented and he requested that the course chairman should be present as was requested by Lt Col Phiri. Maj Matli was formally requested
to accompany Lt Col Phiri to this interview with Col Kleynhans.
I brought Lt Col Phiri and Maj Matli to Col Kleynhans office. This was not 1 5 done in a formal manner as would have been done on office orders due to
the nature of Lt Col Phiri's request of which I did not know what the content of his request was.
Lt Col Phiri and Maj Matli entered Col Kleynhans office. They both paid him
him. Col Kleynhans requested them to take a seat where upon they took a seat with their headdress still on their heads.
Col Kleynhans opened the floor for discussion by stating the fact that he understood it that Lt Col Phiri wanted to speak to him. The initial stage of
the discussion was conducted in a polite manner. Lt Col Phiri conveyed to 5
Col Kleynhans that he thought that it was not right of Col Kleynhans to insult them as officers under instruction. Then Col Kleynhans indicate to Lt Col Phiri that he was not satisfied with the manner in which Lt Col Phiri addressed him. Lt Col Phiri at this stage was very mundane. Col Kleynhans
was referring to the content of the accusations that Lt Col Phiri levelled at 10 him.
In response to this Lt Col Phiri stood up and walked towards to table of Col Kleynhans and leaned over it towards Col Kleynhans and he said: "I am not fucking asking you. Don't tell me how to do it." The Course chairperson
Maj Matli then tried to calm Lt Col Phiri. The whole situation then became 15 out of hand.
Col Kleynhans then told Lt Col Phiri that he, Lt Col Phiri, must conduct himself as an officer and he excused Lt Col Phiri from his office.
Lt Col Phiri then left the office without paying compliments of saluting Col Kleynhans. Col Kleynhans then called him back and asked him to pay the compliment of saluting him as an senior officer. Lt Col Phiri then put on his beret and he saluted Col Kleynhans. I need to state that Lt Col Phiri removed
his beret when he leaned towards Col Kleynhans at his desk. 5
I then left the office of Col Kleynhans and proceeded towards my own office. The Course chairperson was left in Col Kleynhans office. He did not accompany me.
This is all I wish to confirm. The statement has been mud back to mc. / do
not wish to make any amendments, additions, or omissions to the statement. 10
Questions by the Commanders' Investigation Team:
When did Lt Col Phiri called Col Kleynhans a racist.
Answer: It was during the ensuing argument
A
• •
DA TE: 15
This is all I wish to confirm. The statement has been read back to me. I do not wish to make any amendments, additions, or omissions to the statement.
... (signature)
In reply to the questions put to me by the commissioner of oaths, I also declare:
a I know and understand the content of the above confirmation.
b. I have objection to take the prescribed oath due to religious
beliefs. I will confirm the content of it. 5
c. I consider the confirmation as truthful.
Thus declared and signed by me after confirming the declaration on the seventh day of March 2001 at Thaba Tswane.
SIGNATURE OF WITNESS ... (signature) Lt Col Lentsoe
DATE: 07 MARCH 2001 10
SIGNATURE OF THE CHAIRPERSON: COMMANDER'S INVESTIGATION TEAM
DATE: 07 MARCH 2001
SIGNATURE OF MEMBER: COMMANDER'S INVESTIGATION TEAM:
I certify that the deponent has acknowledged before me that he knows and understands the content of this declaration. Thus acknowledged, confirmed and signed before me on the 7th day of March 2001 at Thaba Tswane.
...(signature)
AFFIDAVIT OF WITNESS NUMBER TWO
I, Force No 94725678 PE Raymond Lentsoe, an officer residing at 11 Danie Theron Street, Thaba Tswane Ward and employed as the Course leader at the Junior Command and Staff Duties Course at the SA Army College, Thaba
Tswane declare that I have been informed of my Wrights in terms of Rule 88 5
MDC and that I was properly sworn in terms of Sec 137(1► MDC confirm the following:
On 06 February 2001 Lt Col Phiri came to my office with the chairperson, Maj Matli, and requested me to make an appointment for him with the Chief
Instructor Col Beyers Kleynhans, in regard to his dissatisfaction following the 10 Chief Instructor's address to the course that morning. I went to the Chief Instructor's office and conveyed Lt Col Phiri's request to Col Kleynhans. Col Kleynhans consented and he requested that the course chairman should be present as was requested by Lt Col Phiri. Maj Matli was formally requested
to accompany Lt Col Phiri to this interview with Col Kleynhans. 15
I brought Lt Col Phiri and Maj Matli to Col Kleynhans's office. This was not done in a formal manner as would have been done on office orders due to the nature of Lt Col Phiri's request of which I did not know what the content of his request was.
Lt Col Phiri and Maj Matli entered Col Kleynhans office. They both paid him 20 the compliments of saluting him. Col Kleynhans requested them to take a
seat whereupon they took a seat with their headdress still on their heads.
Col Kleynhans opened the floor for discussion by stating the fact that he understood it that Lt Col Phiri wanted to speak to him. The initial stage of the discussion was conducted in a polite manner. Lt Col Phiri conveyed to
Col Kleynhans that he thought that it was not right of Col Kleynhans to insult 5
them as officers under instruction. Then Col Kleynhans indicate to Lt Col
Phiri that he was not satisfied with the manner in which Lt Col Phiri addres¬sed him. Lt Col Phiri at this stage was very mundane. Col Kleynhans was referring to the content of the accusations that Lt Col Phiri levelled at him.
In response to this Lt Col Phiri stood up and walked towards to table of Col 10 Kleynhans and leaned over it towards Col Kleynhans and he said: "I am not fucking asking you. Don't tell me how to do it." The course chairperson Maj Matti then tried to calm Lt Col Phiri. The whole situation then became out
of hand.
Col Kleynhans then told Lt Col Phiri that he, Lt Col Phiri, must conduct 15 himself as an officer and he excused Lt Col Phiri from his office.
Lt Col Phiri then left the office without paying compliments of saluting Col Kleynhans. Col Kleynhans then called him back and asked him to pay compliments of saluting him as an senior officer. Lt Col Phiri then put on his beret and he saluted Col Kleynhans. I need to state that Lt Col Phiri removed 20
89/90 ENCLOSURE 2
Typed version of Affidavit by R Lentsoe 343
his beret when he leaned towards Col Kleynhans at his desk.
I then left the office of Col Kleynhans and proceeded towards my own office. The Course chairperson was left in Col Kleynhans office. He did not accompany me.
Page 90 CONFIDENTIAL 5
Questions by Commanders' Investigation Team:
Question: When did Lt Col Phiri called Col Kleynhans a racist.
Answer: It was during the ensuing argument
No further questions by the Commander's Investigation Team
This is all I wish to state. The statement has been read back to me. I do not 10 wish to make any amendments, additions, or omissions to the statement.
1 In reply to the questions put to me by the commissioner of oaths, I
also declare:
a I know and understand the content of the above confirmation.
b. I have an objection in taking the prescribed oath due to religious 1 5 beliefs; and
c. I consider the confirmation as truthful.
90/91 ENCLOSURE 2
Typed version of Affidavit by R Lentsoe 344
truthful on the 07 day of March 2001 at Thaba Tshwane.
...(signature) Lentsoe Lt Col SIGNATURE OF WITNESS
...(signature)
SIGNATURE OF THE CHAIRPERSON: COMMANDER'S INVESTIGATION 5 TEAM
DATE: 7/03/2001
...(signature)
SIGNATURE OF MEMBER: COMMANDER'S INVESTIGATION TEAM:
DATE: 7/03/01 10
Page 91 CONFIDENTIAL
3. I certify that the deponent has acknowledged before me that he knows
and understands the content of this declaration. Thus acknowledged, confirmed and signed before me on the 07 day of March 2001 at Thaba Tshwane. 15
...(signature)
EX OFFICIO COMMISSIONER OF OATHS
Full name of commissioner of oaths Gert Jacob Anker
in his/her own printed handwriting
Business address of the commissioner of SA Army College Thaba Tswane oaths in his/her own printed handwriting
Rank and Arm of Service of a commissioner of Lt Col 73357105PE 5
oaths appointed ex officio.
RIGHTS OF THE WITNESS
SEC 137(1) MDC CERTIFICATE
The witness is informed regarding the contents of Sec 137 (1) MDC in that he/she is not obliged to: 10
a. Make any statement that can be detrimental to him/her, or
b. Answer any questions that can incriminate him/her,
with reference to the incident being investigated.
The witness take cognisance of the contents of Sec 137 (1) MDC.
... (signature) 07/03/2001 15
WITNESS DATE
... (signature) 07/03/2001
PRESIDENT DATE
...(signature) 07/03/01
MEMBER DATE
CONFIDENTIAL
AFFIDAVIT OF WITNESS NUMBER THREE
I, Force Number 98007693PE Lt Col Goodman Manyanya Phiri, House No 13A Villa Petite, Retief Street, Lyttelton, Pretoria and currently a student at
the Junior Command and Staff Duties Course at the SA Army College , 5
Thaba Tswane declare that I have been informed of my rights in terms of
Rule 88 MDC and that I was informed of my rights in terms of Sec 137(1)MDC wish to decline to make a statement without prejudice towards myself at a later stage, but I wish to state that this matter is bigger than the
SA Army College . 10
No questions was asked by the Commander's Investigation Team
This is all I wish to state. The statement has been read back to me. I do not wish to make any amendments, additions, or omissions to the statement.
Thus signed by me on the 07 day of March 2001 at Thaba Tshwane.
...(signature) 15
SIGNATURE OF WITNESS
... (signature)
SIGNATURE OF MEMBER: COMMANDER'S INVESTIGATION TEAM: DATE: 07/03/01
1. I certify that the deponent has acknowledged before me that he knows
and understands the content of this declaration. Thus acknowledged, 5
confirmed and signed before me on the 07 day of March 2001 at Thaba Tshwane.
... (signature)
EX OFFICIO COMMISSIONER OF OATHS
Full name of commissioner of oaths Gert Jacob Anker 10
Page 93 CONFIDENTIAL
in his/her own printed handwriting
Business address of the commissioner of SA Army College Thaba Tswane oaths in his/her own printed handwriting
Rank and Arm of Service of a commissioner of Lt Col 73357105PE 15
oaths appointed ex officio.
RIGHTS OF THE WITNESS
SEC 137(1) MDC CERTIFICATE
The witness is informed regarding the contents of Sec 137 (1) MDC in that he/she is not obliged to:
a. Make any statement that can be detrimental to him/her, or 5
b. Answer any questions that can incriminate him/her,
with reference to the incident being investigated.
The witness take cognisance of the contents of Sec 137 (1) MDC.
...(signature) 07/03/2001
WITNESS DATE 10
... (signature) 7/3/2001
PRESIDENT DATE
...(signature) 07/03/01
94 ENCLOSURE 2 350
Affidavit by K E Matli
CONFIDENTIAL
AFFIDAVIT OF WITNESS NUMBER ONE FOUR
I, Force Number 95080362 Major Khotso Edmund Matli, residing at No 1 , Smit Street, Clayville West, Olifantsfontein, Midrand and currently a student
on the Junior Command and Staff Duties Course and Course Chairperson 5
was informed of my rights in terms of Rule 88 MDC and in terms of Sec 137(1)MDC decline to make a statement.
No questions was asked by the Commander's Investigation Team
This is all I wish to state. The statement has been read back to me. I do not wish to make any amendments, additions, or omissions to the statement. 10
...(signature)
SIGNATURE OF WITNESS
DATE: 07 MARCH 2001
1. In reply to the questions put to me by the commissioner of oaths, I
also declare: 15
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.
2. Thus declared and signed by me after pronouncing the prescribed oath
on the 7 day of March 2001 at Thaba Tswane.
...(signature)
SIGNATURE OF WITNESS
...(signature)
SIGNATURE OF THE CHAIRPERSON: COMMANDER'S INVESTIGATION 5 TEAM
DATE: 7/3/2001
...(signature)
SIGNATURE OF MEMBER: COMMANDER'S INVESTIGATION TEAM:
DATE: 07/03/01 10
Page 95 CONFIDENTIAL
3. I certify that the deponent has acknowledged before me that he knows
and understands the content of this declaration. Thus acknowledged, confirmed and signed before me on the 07 day of March 2001 at Thaba Tshwane. 15
...(signature)
EX OFFICIO COMMISSIONER OF OATHS
Full name of commissioner of oaths Gert Jacob Anker
in his/her own printed handwriting
Business address of the commissioner of SA Army College Thaba Tswane oaths in his/her own printed handwriting
Rank and Arm of Service of a commissioner of Lt Col 73357105PE 5
oaths appointed ex officio.
RIGHTS OF THE WITNESS
SEC 137(1) MDC CERTIFICATE
Page 96 CONFIDENTIAL
The witness is informed regarding the contents of Sec 137 (1) MDC in that 10 he/she is not obliged to:
a. Make any statement that can be detrimental to him/her, or
b. Answer any questions that can incriminate him/her,
with reference to the incident being investigated.
The witness take cognisance of the contents of Sec 137 (1) MDC. 15
96 ENCLOSURE 2 Affidavit by K E Matli
... (signature) 7/3/2001
PRESIDENT DATE
...(signature) 07/03/01
MEMBER DATE
Incident Report by JHB Kleynhans
ALREADY PART OF THE RECORD
(See page [s] 242 - 244)
Order form
CONFIDENTIAL
SA ARMY COLLEGE
JCSD BRANCH
ORDERS
Page No: 5
Force No: 98007693 PE Rank: Lt Col
Name: G M Phiri Corps: SA INT C
Unit: Def Int Date: 02 Mar 01
REASONS: Insubordination and disrespect toward a senior officer, the CI of
the JCSD Branch. 10
REMARKS/DECISIONS BY CHIEF INSTRUCTOR JCSD BRANCH
Refer to Incident Report
JHB Kleynhans (signed)
(J H B KLEYNHANS)
CHIEF INSTRUCTOR JCSD BRANCH : COL 15
REMARKS/DECISION BY THE COMMANDANT SA ARMY COLLEGE
(M E PETANE)
COMMANDANT SA ARMY COLLEGE: BRIG GEN 20
OFFICER UNDER INSTRUCTION:
CONFIDENTIAL
Report by G M Phiri
(INCLUDING COL KLEYNHANS' ALLEGATIONS AGAINST ME) MY WOULD BE INSET TO THE PRELIMINARY INVESTIGATION HAD THE ARMY COLLEGE NOT DENIED ME THE RIGHT TO PARTICIPATE IN THE DEBATE
1. "The best way to destroy the average black SANDF officer is to leave
him to his own devices, totally unaided and informed, with the best 5
assistant to him as our kind of a Corporal, solely with the propose to report back to us on the progress of the self-destruction...
2. "The other effective alternative is to treat him extra-nice as you hand him over to his own people to teach the professionalism, high standards and discipline we knew so well in the SANDF." 10 TRANSLATED PROVERB.
3. This is not a mere slogan of the tiny minority of white racists active today in the SANDF. It is the life too many senior black officers are leading in units controlled by the racists. Interestingly, all those racists have nice stories to tell as supposed proof of their non-racialism. 15
4. December 2000 Col Beyers Kleynhans, throws me into a study limbo by informing me he is returning me to my unit first thing January 2001. I need not study for any re-evaluation as there will be none granted me.
Report by G M Phiri
5. I duly inform my OC at Defence Intelligence to start preparing for a role for me in the unit as I am returning for work full time January after failing the Mobile Phase, and the kind gentleman responds, All right, Manyanya, there is always a next time with JCSD.
6. Little did I know that the man whose brief it was to train and pass me 5
JCSD was in fact on his first phase of his deception-and-lies campaign to try and make me fail the Mobile Phase!
7. That is my side of the general dissatisfaction of the black OUI about the way we were treated during the mobile phase. My side deserves a hearing too! 10
8. What deserves even a greater hearing though is the fact that I discovered the modus operandi of Col Kleynhans' own white racist network in the Branch to manipulated the affairs of the Course with it.
9. What I am writing about here is not a expos but an open secret to the OUI and the Branch DS. I subsequently told the course about my 15 personal discoveries around the same issue.
Report by G M Phiri
10. I told the Course Leader. I told the Chief Instructor (the brains behind
the clique as I am no believer of gossip and that I was going to expose him.) I told the Acting Commandant. I told the recent Chief of the Army PI and his entourage.
1 1. Who's Col Kleynhans? 5
To state the obvious, the Army will have his biography. I do not know whether he came originally from MK, Apla, SADF or any other of those previous amalgams of our National Defence Force. It is not important to me.
12. What is striking to me, and indeed, to most of the other aggrieved 10 students is his very curious mix of a pleasantly sharp intellect characterized by a good grasp of facts both arcane and mundane which he so well complements with a thorough knowledge of his military subject matter as an instructor.
13. This on one hand! 15
14. On the other hand, he cuts the picture of the very embodiment of a shambles when it comes to leadership; and that is being put mildly.
15. He, in fact, never keeps any cordial officer-like relationship with any senior black fellow DS officer in the College.
Report by G M Phiri
16. Yet he encourages many a Major at OUI level to be buddy-buddy with either him personally or his cell number over the most childish of issues that the adult minded JCSD course themselves, their commit-tee, a current module leader or the course leader can solve.
17. The ethos he created on the Course can be identified through various 5
means. The most fashionable these days being the fact that when Friday parade start, the drill squads quickly form up either black or white groups with the white group "kaffiring" a lot and simply telling a black officer who misses a step go join your own people now or drill properly. 10
18. The practical shortcomings of his management style has, I trust, been brought to his attention several occasions before. He believes,
unfortunately, that no fellow officer of a rank lower than a General, can correct him from his obviously wrong ways of management because some General somewhere gave him a clean bill of health as 15 a non-racist.
1 9. Now who is Major Matli aka Mufasa?
Major Matli, a doe-eyed and unimposing officer, like Col Kleynhans, makes a first acquaintance with me on this JCSD course.
Annexure A
Report by G M Phiri
20. I salute him for the fact that not only has the current JCSD course made friends across the ethnic and colour lines despite the frantic divisive effort of the Col Kleynhans's camp, but we even built an unbreakable rapport with the international fellows, especially with Nigerian wunderkind Capt Omar Mohammed. 5
21. I have made friends with whites on a professional level on the Course, and so did the other black students; because we know most of them are quite aware of Col Kleynhans's strange, Jekyll and Hyde behaviour. They find him so comical that they nicknamed him "Mr Armstrong". In the same vein, most of the other white instructors are just on a 10 different wavelength from his when it comes to slighting black officers' contribution or efforts.
22. Since Matli and Kleynhans are such two leadership poles apart, it is easy to see that the human-relations success Maj Matli (Mufasa) made of the course, so well complementing what the college achieved 15 through the MPI (induction) phase, is in fact certainly the reason why he earned himself the ire of the racists.
23. The storm in a Swedish tea-cup.
Except for the fact that the course had to host over tea an entourage
of Swedish soldiers visiting South Africa this was just another ordinary 20 day.
24. Mufasa, for his prerogative when VIPs visit us, proceeded to deliver even on this occasion a speech any former MK officer who had been to Europe during the anti-apartheid struggle and was aware of what is happening around him in South Africa today would have equally recited even in his sleep. 5
25. Mufasa painted the picture of the Swedish as having been partners and comrades-in-arms to the warriors who brought down racial rule in the land.
26. This statement of facts, we are made to believe now, angered a few racists only for reasons best known to their sick minds. They never 10 said it then but many moons down the line, when they started to instigate a race riot they mentioned this as one of Mufasa's weaknesses, "the making of political speeches".
27. Mobile-Phase Evaluation.
The Mobile-Phase evaluation was conducted just before we closed for 15 the December month and those who had failed were told to prepare for
a reevaluation January 2001 (you know now I was excluded by order).
28. It is one afternoon, then, in the month of January 2001 that Mufasa calls his committee to discuss the OUI's unhappiness over the result of the marks for Xali Weri (the Mobile-Phase evaluation). Apparently a resolve is made to engage the DS on this matter. The salvo would be an address by Mufasa to the self-same DS, during the End- 5
Milestone function.
29. The Kleynhans informer in the committee, quickly reported this development to his other contacts. They mobilized and started to cook up the plan that wrong-footed Mufasa, made him look like somebody inciting some revolt and got all the whites huddled together 10 like an endangered species for the rest of the evening.
30. The fallout from this is what even attracted the Office of Chief of the Army and hence the PI.
31 . Among the many other sequels there was a meeting of the DS that called for the ouster of Mufasa, subsequently followed by a Lentsoe- 15 facilitated soul-search exercise conducted by students.
32. A member of the committee asserted that Mufasa was the cause of the crisis because he had said in a committee meeting "I do not fear whites". She said, in her view, that was black racism.
33. She couldn't answer though when I asked why, if she thought Mufasa was a black racist, she did not like an officer of honour stand to be counted and report Mufasa to us 80 other OUI that we fire the racist as we had every right fire and hire any course chairman.
34. Based on what I had experienced myself as Kleynhans victim, what I 5
had witnessed and heard in that debate I went ahead to express the opinion to the course that there was no conflict among students.
35. There was, thought, I reasoned, to a standing ovation of the 80 other students, that either the DS were not getting along well together and decided to choose the students for their battle-field or there was a 10 small group of destabilizes whose job was to target the harmony of the course.
36. I even told them of my discovery of an instructor, the rank of a lieutenant-colonel who is in the forefront of the distabilization.
37. I am deliberately going to town about my contribution to the debate 15 because the Acting Commandant is still to give me the pat on the back he promised if I stand firm to what I know.
38. The whole debate, characterized by great animosity to the point of even a walk-out by an OUI who said it was another futile exercise, culminated with the Course Leader, mooting for the first time the possible institution of a Board of Inquiry, which idea most of us OUI were inspired to hear. 5
39. I personally was in a process of writing a redness of wrongs against Col Kleynhans over his mishandling of my training in the College; but decided to drop the idea as it was clear I would get a better audience with any board of inquiry.
40. The Acting Commandant steps in indeed, the following week the 10 Acting Commandant announced the institution of a Board of Inquiry from the Chief of the Army. In the presence of Kleynhans and his entire staff, he ordered that no one in his College unit should speak again about the issues causing misunderstanding.
41. It puzzles me no end why the Acting Commandant allowed his 15 subordinate, the JCSD Command Branch Commander, to defy that order the very next day or so, in the form of coming to the lecture-room and insulting most of us students, particularly the writer.
42. As an Agnostic, no other cheek was turned by me and I challenged
who insulted him as his accompanying document so clearly states.
43. I blame the Acting Commandant for this mishap for if he had lived up to his reputation of a disciplinarian, he would have started with his obviously wayward JCSD Branch Commander!
44. Specimen of Col Kleynhans' Lecture-room verbal attack. 5
It was definitely one of his weakest moments when he came to abuse the students over "lack of professionalism", with an emphasis on the committee "for trying to tell him how to run" the Branch.
45. The Chief Instructor further singled me out for his best venom of the day and I hereunder summarize the drift of that attack and many other 10 shots in the dark (the reader may confirm this with any honest student).
46. "Unlike many of us black officers who want to pass by virtue of our skin colour, he makes a bright student; has gone through courses among the better learning institutions of his country and has every 15 time come tops"
47. If blacks had been offered equal opportunity under the apartheid you brag training under you would probably be lucky to be a street sweeper today!
48. "B matt had proposed Lt-Col Phiri be removed from the course and I humanely defended him by virtue of Phiri's skin colour."
49. You are lying again. You are the one who wanted me out of the school. I had to defend myself to remain on course. In any case do not drag my name into your current crises with the student committee. 5
Face it like the man and officer you say you are!
50. "Lt-Col Phiri is attacking the integrity of my instructors."
51. It is not Phiri, but their own actions that would bring their integrity into question.
52. "I am going to defend the integrity of my DS with my life." 10
53. You mean, of course, the white OUI-instigator among your staff because, definitely Lt-Col Martin Sehlapelo whom you've just said alone should he be answerable for any shambles with Xali Weri, cannot have his integrity protected by that very statement!
54. There was a lot of other angry talk which the other OUI can attest to 15 but at the end of this 30 min political brag and mudslinging, the Col walked back to his office turning a deaf here to students who called loudly for a clarification of his scathing attacks against all and sundry.
Efforts to try and get him to readdress him failed in toto!
55. My request.
In his office I asked him for two favours. First, he must stop harming my name. Second, a reminder that Acting Commandant said any one
can reserve their contribution for the eventual Board of Inquiry; and I 5
for one was going to participate in that Inquiry.
56. CONCLUSION
57. I fear nothing but loss of conscience; those who have lost conscience will always spell survival t-r-i-c-k-s; and they delude themselves if they see any leadership role in this army. There's only one way for them 10 to go; with tails between their legs!
SUMMARY OF THE STATEMENTS OF THE WITNESSES BY THE COMMANDER'S INVESTIGATION TEAM
WITNESS NUMBER ONE
Witness number one, Col Jan Hendrik Beyers Kleynhans, stated under oath 5
the following:
On 06 Feb 01, Lt Col Phiri requested the Course Leader, Lt Col R Lentsoe for an appointment with the CI JCSD Branch. He was accompanied by the Course Chairman, Maj Matli. Lt Col Phiri stated that he was unhappy with
the fact that Col Kleynhans stated that the Branch was responsible for the 10 recommendation to the Selection Board that Lt Col Phiri remained on course
as it did not correlate with his Selection Board report which stated that the Branch recommended his withdrawal from the course after failing Milestone 2. Col Kleynhans responded by saying that after discussing Lt Col Phiri's
case and the issue of re-training, that the Branch felt that Lt Col Phiri would 15 gain more by remaining on course, as re-training opportunities in his specific
field and at his workplace would be limited, and thus made the recommendation for him to remain on course.
Lt Col Phiri then added that Col Kleynhans contributed to rumours in the Branch by listening to OUI phoning Him on his cellular phone. He replied by 20 saying that only one OUI phoned him during the whole course and that was
after the speech by the Course Chairman. Col Kleynhans also replied that his number was available to the whole course and it was the right of any OUI to contact him at any time if he/she experienced a problem. Col Kleynhans also said that he had said that he will stand by the instructors and die for them
until proven wrong. Lt Col Phiri then said that Col Kleynhans will die as he 5
heard an instructor telling another OUI that they must discredit the course chairman, but he will tell that to the Board.
Lt Col Phiri then said that he did not agree with the way that Col Kleynhans did his job. Col Kleynhans said that Lt Col Phiri could not say that, as Lt Col
Phiri was never in his position. Lt Col Phiri then shouted: "I am fucking 10 telling you that!". Col Kleynhans replied by telling Lt Col Phiri that he was
out of line and thus excused from my office. Lt Col Phiri then jumped up and leant across Col Kleynhans's desk and shouted: "You are a racist, and I hate racists". Col Kleynhans repeated that Lt Col Phiri was excused upon which
Lt Col Phiri walked out of his office without paying compliments. Col 15 Kleynhans testified that he called Lt Col Phiri back and reminded him to pay
the necessary compliments. Lt Col Phiri saluted and left. His outburst was so severe that even the Course Chairman, Maj Matli reprimanded him to control himself.
There are seven incident reports on Lt Col Phiri's file with regards to work 20 not being up to standard. He appeared on office bearing for three times with
the CI in this regard. During these occasions he was treated in a humane way as befitting a senior officer.
Lt Col Phiri admitted that he was not up to standard pertaining the Mobile Operations Module and that he would have to work at it in the future. This Lt Col Phiri repeated during his appearance before the Selection Board.
During the evaluation Lt Col did not complete his product and could not pass. 5
Lt Col Phiri could thus not be surprised by failing the module and by appearing before the Selection Board. Neither could he held Col Kleynhans responsible for his predicament.
Col Kleynhans testified that he was upset about the manner in which Lt Col
Phiri addressed him and swore at me. He did so in front of the Course Chair- 10 man, a major and thus his junior. Self-control is a critical competency for any officer in the SANDF and he displayed none of it during this incident. Col Kleynhans testified that he was even more upset that Lt Col Phiri called him
a racist. Col Kleynhans testified that he was at the SA Army College for eight years, working with most of the General and other Senior Officers of 1 5 the SA Army. He testified that never could anyone point a finger at him accusing him of racism or racial prejudice. Col Kleynhans testified that he
saw this in a very serious light, not only as damaging and derogatory to him as a person, but also in terms of his seniority in rank, status and his ap-
pointment as the Chief Instructor of the JCSD Branch. He also handed to the 20 Commander's Investigation Team the Incident Report marked "Annexure A".
not proceed to formally charge Lt Col Phiri of contravening Art 17 of the MDC in regard to his behaviour that he displayed towards him as a senior officer, Col Kleynhans replied that an Board of Inquiry that was done by the office of the Inspector General was conducted at that time to investigate an related incident where Lt Col Phiri was involved and that the thought that it 5
would have been wrong to proceed in that direction whilst this board of inquiry was still investigation these related issues.
WITNESS NUMBER TWO
Witness number two, Lt Col Raymond Lentsoe confirmed the following:
On 06 February 2001 Lt Col Phiri came to his office with the chairperson, 10 Maj Matli, and requested him to make an appointment for him with the Chief Instructor, Col Beyers Kleynhans, in regard to his dissatisfaction following the Chief Instructor's address to the course that morning. Lt Col Lentsoe went
to the Chief Instructor's office and conveyed Lt Col Phiri's request to Col Kleynhans. Col Kleynhans consented and he requested that the course chair- 15 man should be present as was requested by Lt Col Phiri. Maj Matli was formally requested to accompany Lt Col Phiri to this interview with Col Kleynhans.
Lt Col Lentsoe brought Lt Col Phiri and Maj Matli to Col Kleynhans's office.
This was not done in a formal manner as would have been done on office 20 orders due to the nature of Lt Col Phiri's request of which I did not know what the content of his request was.
Lt Col Phiri and Maj Matti entered Col Kleynhans' office. They both paid him the complement of saluting him. Col Kleynhans requested them to take a seat whereupon they took a seat with their headdress till on their heads.
Col Kleynhans opened the floor for discussion by stating the fact that he 5
understood it that Lt Col Phiri wanted to speak to him. The initial stage of
the discussion was conducted in a polite manner. Lt Col Phiri conveyed to Col Kleynhans that he thought that it was not right of Col Kleynhans to insult them as officers under instruction. Then Col Kleynhans indicate to Lt Col
Phiri that he was not satisfied with the manner in which Lt Col Phiri addres- 10 sed him. Lt Col Phiri at this stage was very mundane. Col Kleynhans was referring to the content of the accusations that Lt Col Phiri levelled at him.
In response to this Lt Col Phiri stood up and walked towards the table of Col Kleynhans and leaned over it towards Col Kleynhans and he said: "I am not fucking asking you. Don't tell me how to do it." The course chairperson Maj 15 Matti then tried to calm Lt Col Phiri. The whole situation then became out
of hand.
Col Kleynhans then told Lt Col Phiri that he, Lt Col Phiri, must conduct himself as an officer and he excused Lt Col Phiri from his office.
Col Kleynhans. Col Kleynhans then called him back and asked him to pay compliments of saluting him as an senior officer. Lt Col Phiri then put on his beret and he saluted Col Kleynhans. Lt Col Lentsoe said that Lt Col Phiri removed his beret when he leaned towards Col Kleynhans at his desk.
Lt Col Lentsoe then left the office of Col Kleynhans and proceeded towards 5
my own office. The Course chairperson was left in Col Kleynhans's office.
He did not Lt Col Lentsoe.
In regard to a question that was put to Lt Col Lentsoe as to when did Lt Col Phiri called Col Kleynhans a "racist", he responded by saying that it was
during the ensuing argument. 10
WITNESS NUMBER THREE
This witness declined to make a statement.
WITNESS NUMBER FOUR
This witness declined to make a statement.
CONFIDENTIAL 1 5
FINDINGS AND RECOMMENDATIONS BY THE COMMANDER's INVESTIGATION TEAM
1. The circumstances that led to this incident:
a. The apparent dissatisfaction that Lt Col Phiri experienced with 5
the address by Col Kleynhans to the course led to this incident.
b. This was further enhanced by the attitude that Lt Col Phiri displayed towards Col Kleynhans in the office of the latter.
c. It was also apparent that Lt Col Phiri wanted to receive more
attention to his problems. 10
2. The Commander's Investigation Team found witness number one to be a reliable witness and deduct from his evidence the following conclusions as facts:
a. Lt Col Phiri displayed an arrogant attitude towards Col
Kleynhans. 1 5
b. Lt Col Phiri did display in his physical actions, by leaning across the table in Col Kleynhans's office, that he became aggressive.
c. Lt Col Phiri did call Col Kleynhans a "racist".
d. Lt Col Phiri did display the use of vulgar language in Col Kleynhans' office.
e. Lt Col Phiri did display bad discipline by not saluting a senior
officer when he left Col Kleynhans's office the first time. 5
3. The Commander's Investigation Team, found witness number two to be a reliable witness and deduct from his evidence the following conclusions as facts.
a. Lt Col Phiri displayed an arrogant attitude towards Col
Kleynhans. 10
b. Lt Col Phiri did display in his physical actions, by leaning across the table in Col Kleynhans's office, that he became aggressive.
c. Lt Col Phiri did call Col Kleynhans a "racist".
d. Lt Col Phiri did display the use of vulgar language in Col
Kleynhans's office. 1 5
e. Lt Col Phiri did display bad discipline by not saluting a senior
officer when he left Col Kleynhans's office the first time.
4. The Commander's Investigation Team could not evaluate witness
number three, Lt Col Phiri, due to the fact that he declined to make a 5
statement. The Commander's Investigation Team is however of the opinion that Lt Col Phiri believes that there is a problem besides the relevant incident.
5. The Commander's Investigation Team could not evaluate witness number four, Maj Matli, due to the fact that he declined to make a 10 statement. The Commander's Investigation Team was however informed by maj Matli in an informal way that he was of the opinion that this matter is now resolved due to the fact that the course had already received feedback in regard to the Board of Inquiry that was done by the Inspector General's Office. 1 5
6. Col Kleynhans handed to the board a copy of the incident report marked Annexure A which correlates to his statement and to the statement made by Lt Col Lentsoe.
7. Who was responsible for the occurrence?
The Commander's Investigation Team is of the opinion that Lt Col Phiri 20
displayed bad discipline and that he was responsible for this incident.
8. The possible consequence for the SANDF.
The Commander's Investigation Team found the following consequences to the SANDF:
a. The fact that this incident occurred in from of a major may
constitute that Lt Col Phiri displayed bad discipline in front of his 5
subordinate.
b. This will not be an once off occurrence due to the fact that the Commander's Investigation Team is of the opinion that Lt Col Phiri will make himself guilty of bad behaviour in the future if he is not addressed. 10
9. Steps to be taken to avoid a recurrence or to relieve the consequence.
a. Disciplinary actions should be taken against Lt Col Phiri.
b. The long period that Col Kleynhans took before disciplinary actions may be instituted should be avoided in the future irrespective of the fact that another Board of Inquiry may be 15 conducted at the same time.
10. Any related matters brought to the attention of the Commander's
Investigation Team:
The Commander's Investigation Team is of the opinion that Lt Col Phiri still do have a lot of unresolved anger in regard to this incident that
need to be addressed. However, the Commander's Investigation Team 5
is also of the opinion that Lt Col Phiri will not be happy to address his anger with anybody less than the Chief of the SA Army, Lt Gen Gilbert Remano.
11. Steps necessary to rectify the problem as well as disciplinary steps to
be taken. 10
a. The Commander's Investigation Team recommends that Lt Col
Phiri be formally charged with contravening section 17 of the Military Disciplinary Code in that he made himself guilty of contravening the elements of this section.
b. Disciplinary action should be instituted immediately against 15
anybody who displays bad discipline.
...(signature) (G J ANKER) CHAIRPERSON OF THE COMMANDER'S INVESTIGATION TEAM: LT COL
DATE: 08/03/01 20
ENCLOSURE 2 379
Findings and Recommendations
CONFIDENTIAL
RECOMMENDATIONS BY COMMANDERS INVESTIGATION TEAM
1. That Lt Col Phiri be formally charged of contravening section 17 of the
MDC in that he used threatening, insubordinate or insulting language
towards Col Kleynhans on 06 February 2001. 5
2 That Lt Col Phiri, alternatively to section 17 of the MDC, be formally charged of contravening section 32 MDC in that he displayed scandalous behaviour as an officer.
3. That Lt Col Phiri, alternatively to the abovementioned sections of the
MDC, be formally charged of contravening section 46 MDC in that he 10
displayed bad military discipline in that his conduct was to the prejudice of military discipline on 06 February 2001 in Col Kleynhans's office.
...(signature)
(G J ANKER) 15
CHAIRPERSON OF THE COMMANDER'S INVESTIGATION TEAM: LT COL
DATE: 08/03/01
112 ENCLOSURE 2 380
Remarks by Acting Commandant
CONFIDENTIAL
REMARKS BY THE ACTING COMMANDANT OF THE SA ARMY COLLEGE, COL E DROST:
Member must be charged with
a. Art Sec 46 MDC (6 Feb 01 and 7 Mar 01) 5
b. Sec 14(b) 6th March 01 MDC
c. Sec 42(b) MDC 5 March 01.
...(signature)
(E. DROST)
ACTING COMMANDANT OF THE SA ARMY COLLEGE: BRIG GEN 10
113 ENCLOSURE 2 381
Remarks by GOC Training Formation
CONFIDENTIAL
REMARKS BY GOC TRAINING FORMATION:
ID STEYN)
GOC TRAINING FORMATION: BRIG GEN
114 ENCLOSURE 3 382
Order form
CONFIDENTIAL
SA ARMY COLLEGE
JCSD BRANCH
ORDERS
Page No: 5
Force No: 98007693 PE Rank: Lt Col
Name: G M Phiri Corps: SA INT C
Unit: Def Int Date: 02 Mar 01
REASONS: Insubordination and disrespect toward a senior officer, the Cl of
the JCSD Branch. 10
REMARKS/DECISIONS BY CHIEF INSTRUCTOR JCSD BRANCH
Refer to Incident Report
JHB Kleynhans (signed)
(J H B KLEYNHANS)
CHIEF INSTRUCTOR JCSD BRANCH : COL 15
REMARKS/DECISION BY THE COMMANDANT SA ARMY COLLEGE Member to forward his response to the allegation to me and on Mo 5 Mar 01 at 08:00.
... (signature)
(M E PETANE) 20
COMMANDANT SA ARMY COLLEGE: BRIG GEN
OFFICER UNDER INSTRUCTION:
115 ENCLOSURE 3
Incident Report by JHB Kleynhans
ALREADY PART OF THE RECORD
(See page [s] 242 - 244)
ALREADY PART OF THE RECORD
(See page [s] 356 - 367)
122 ENCLOSURE 3 385
Order form
CONFIDENTIAL
SA ARMY COLLEGE
JCSD BRANCH
ORDERS
Page No: 5
Force No: 98007693 PE Rank: Lt Col
Name: G M Phiri Corps: SA INT C
Unit: Def Int Date: 02 Mar 01
REASONS: Insubordination and disrespect toward a senior officer, the Cl of
the JCSD Branch. 10
REMARKS/DECISIONS BY CHIEF INSTRUCTOR JCSD BRANCH
Refer to Incident Report
JHB Kleynhans (signed)
(J H B KLEYNHANS)
CHIEF INSTRUCTOR JCSD BRANCH : COL 1 5
REMARKS/DECISION BY THE COMMANDANT SA ARMY COLLEGE Member to forward his response to the allegation to me and on Mo 5 Mar 01 at 08:00.
... (signature)
(M E PETANE) 20
COMMANDANT SA ARMY COLLEGE: BRIG GEN
OFFICER UNDER INSTRUCTION:
CONFIDENTIAL
123 ENCLOSURE 3
Redress of Wrong Letter from G M Phiri to Chief of Army
CONFIDENTIAL
98007693PE Private Bag 22037 Lyttelton
0140
06 March 2001
5
is- .zi, c. - .)..A-
cc5c v,_ '''' ckZ)''c-\— •
1 0
...000"-
REDRESS OF WRONG AGAINST BRIG GEN M E MASOALA IN HIS CAPACITY AS PRESIDENT/CHAIRMAN OF CHIEF ARMY'S PI AT SA ARMY COLLEGE FEB-MARCH 2001
1 The Brig Gen and his staff came to the above-mentioned college some
three weeks ago and requested of us OUI to submit any written 15 grievances for his attention.
2. The explanation was: from that initial written submission, which I duly completed with the assistance of my fellow OUI, would then individually be called in for further verbal inputs.
3. Personally I also addressed the Brig Gene to the effect that I had 20
123/124 ENCLOSURE 3
Redress of Wrong Letter from G M Phiri to Chief of Army 387
first-hand information on the involvement of an instructor Lt Col who incites racial conflict on the JCSD Course; and that I want to name the names.
4. He assured me I would receive audience.
5. Col White in the Brig Gen's office tells me yesterday they will never 5
consider my submission because the case has been closed.
6. My conviction is my voice in the SANDF in the current transformation process has deliberately been taken away by forces who want to maintain racism in this college.
7 The Brig Gen, who had the brief to give me back my voice, failed me 10
in that regard.
Page 124
8. He unawares also opened my flank for victimisation by the very racists I intended to expose.
9. Accompanying this letter are some of the ideas I intended to submit to 1 5
the Pl. I also avail to you a copy of some of the vitriolic lies spread
about me in an effort to revenge for my outspokenness against the
124 ENCLOSURE 3 388
Redress of Wrong Letter from
G M Phiri to Chief of Army
institutional racism of the JCSD Branch.
1 0 . Inestimable appreciation will I express if I get a positive response
which I humbly looked forward to.
...Lt Col (signature)
(G M PHIRI) 5
OFFICER UNDER INSTRUCTION SA ARMY COLLEGE: LT COL
GMP/GMP
For Info
C SANDF (Attention: Col Khohliwe)
CJ Support (Attention: Lt Col Mankosi) 10
Army (IG Army) (Attention: Brig Gen M E Masoala)
A/Cmdt SA Army College (Attention: Col E Drost)
125-130 ENCLOSURE 3
Redress of Wrong Letter from G M Phiri to Chief of Army 389
ALREADY PART OF THE RECORD
(See page [s] 230 - 241)
131 ENCLOSURE 3 390
Copy of Order from JHB Kleynhans
CONFIDENTIAL
SA ARMY COLLEGE
JCSD BRANCH
ORDERS
Page No: 5
Force No: 98005135 PE Rank: Lt Col
Name: G M Phiri Corps: SA INT C
Unit: Detached to Def Int Date: 06 Mar 01
REASONS:
10
REMARKS/DECISIONS BY CHIEF INSTRUCTOR JCSD BRANCH Refer to Col Drost.
JHB Kleynhans (signed)
(J H B KLEYNHANS)
CHIEF INSTRUCTOR JCSD BRANCH : COL 15
REMARKS/DECISION BY THE COMMANDANT SA ARMY COLLEGE
I am convening a Comdt's investigation into the whole matter which has to be completed by 8 March 01. You also have to hand in a written statement wrt your whereabouts on Tu and We at 08:00 on the 31 March 01.
(M E PETANE) 20
COMMANDANT SA ARMY COLLEGE: BRIG GEN
OFFICER UNDER INSTRUCTION:
Member refused to sign
CONFIDENTIAL
132 ENCLOSURE 3
Incident Report by JHB Kleynhans
ALREADY PART OF THE RECORD
(See page [s] 242 - 244)
INCIDENT REPORT
No: 98005135 PE. Rank: Lt Col Name: G.M. Phiri
Corps: SA Int C Date of Incident: 7 Mar 01
INCIDENT
1. Lt Col Phiri was on office orders before me, Col E.F Drost, on 071245B Mar 01. Lt Col A.R. Lentsoe, as the JCSD Course Leader, attended the orders with Lt Col Phiri.
2. The officer entered my office, made a left turn and with a challenging attitude then stood at ease. I ordered him to stand at attention at which he did so, but he clearly showed his displeasure by the expression on his face and the way in which he rolled his eyes.
3. I asked the officer where he was during the afternoon of 6 Mar 01 and the morning of 7 Mar 01, as he was nowhere to be found during that period. He had no authority to be anywhere except with the course. He also did not attend the feedback session from Brig Gen Steyn after completion of the IG investigation on 061500B Mar 01.
4. He blatantly refused to answer my question and said in a disrespectful and arrogant manner that I could go and ask his lawyers.
5. I thereafter gave him a direct order to furnish me with letter of explanation in this reE I on 080800B Mar 01.
5. This officer was extremely arrogant at all times. I thereafter informed him that I have
convened a commander's investigation and that he had to report to Lt Col Maswanganyi's Dffice by 13:30 on 7 May 01. I proffered him the orders document, which he blatantly refused .o sign. I asked him twice to read it and then to sign it. He refused to do it and addressed me n an extremely undisciplined manner by not even referring to my rank. After correcting him rnce more, he started answering me by shouting: "Yes, Colonel! l". At this I also grew gitated and, as the conversation went along, the tone of our voices rose to the extent that we vere almost shouting at one another.
I then told the officer that he was excused from my office. Suddenly he wanted to know I had received his letter (Redress of Wrongs against Brig Gen Masoala). I refused to iswer him as I had already excused him and orders are not the place to discuss any other atter.
After almost having to remove him from my office by force, he left without saluting at y desk. Suddenly he stopped and saluted while facing the door. He then confronted me to ute him without giving me any chance to say anything. "Okay, you don't want to salute ;!!" (Once again he was shouting). With these words he stormed out of my office. I urned his irregular compliment without him seeing me, as he was already down the Tido r.
9. This officer's conduct was totally unacceptable. It bears testimony of poor discipline and his challenge of authority. His emotional outbursts seem to be uncontrollable.
10. Pending the outcome of the commander's investigation, the officer should be charged in accordance with Sec 17. The CI JCSD is to confirm that the officer was not present at stated times. If this is true, the officer should also be charged with being absent without leave. The CI JCSD is to confirm whether the officer had authority to liaise directly with Brig Gen Masoala and IG in broad on Mon, 5 Mar or Tue, 6 Mar 01. If this is not the case, the member should also be charged for not adhering to the channels of command.
aplullitb,
.41 Ilk dr.
COUR 4191."-RNR: LT COL WITN "'SS Date:
ALREADY PART OF THE RECORD
(See page [s] 245 - 246)
For sure, I also proceeded to send other copies of the letter, Redress of Wrong, that was given you yesterday morning.
I want finally to state that no one can make a good man bad. I have never been a bad soldier; and, as the Commandant, just think at what you are possibly not seeing that makes you think I am such a band and ill-disciplined 5
soldier. Think about the "sounds of the forest you are not hearing" and you
will discover that you and me are actually struggling for the same thing, a better disciplined Army, which is not existing in your Unit because of the actions instigated by the behaviours of the man sitting next to you.
The sooner you see it, the better. By the way, are you going to make an 10 investigation about the incident yesterday? or are you going to pretend it did
not happen, too, like the incident of a white instructor instigating racism I told you about?
...(signature)
LT COL G M PHIRI 15
125-130 ENCLOSURE 3
Redress of Wrong Letter from G M Phiri to Chief of Army 389
ALREADY PART OF THE RECORD
(See page [s] 230 - 241 )
131 ENCLOSURE 3 390
Copy of Order from JHB Kleynhans
CONFIDENTIAL
SA ARMY COLLEGE
JCSD BRANCH
ORDERS
Page No: 5
Force No: 98005135 PE Rank: Lt Col
Name: G M Phiri Corps: SA INT C
Unit: Detached to Def Int Date: 06 Mar 01
REASONS:
10
REMARKS/DECISIONS BY CHIEF INSTRUCTOR JCSD BRANCH Refer to Col Drost.
JHB Kleynhans (signed)
(J H B KLEYNHANS)
CHIEF INSTRUCTOR JCSD BRANCH : COL 15
REMARKS/DECISION BY THE COMMANDANT SA ARMY COLLEGE
I am convening a Comdt's investigation into the whole matter which has to be completed by 8 March 01. You also have to hand in a written statement wrt your whereabouts on Tu and We at 08:00 on the 31 March 01.
(M E PETANE) 20
COMMANDANT SA ARMY COLLEGE: BRIG GEN
OFFICER UNDER INSTRUCTION:
Member refused to sign
CONFIDENTIAL
ALREADY PART OF THE RECORD
(See page [s] 289 - 292)
139 ENCLOSURE 3 397
Letter from E F Drost iro G M Phiri
CONF IDENTIAL
SA ARMY COL/C/701 G37 2000 02
Telephone: 674 4107 Enquiries: Lt Col E. Lourens
98007693PE LT COL G.M. PHIRI SA Army College Private Bag X1002
Thaba Tshwane 0143
lb, April 2002
doing Course 701 G37 2000 02 at the SA Army College.
1. You are aware of the incidents which Lt Col Phiri was involved in when JO
2. It is the considered opinion of the unit staff members who know the details of the incidents referred to in paragraph 1, that it would be to the advantage of both the SA Army College and Lt Col Phiri that this officer does the junior command and staff course of another Service and not that of the SA Army. This will obliterate any negative perceptions that may exist and afford him the opportunity of a clean-slate approach.
3. Your approval and finalisation of this matter will be much appreciated.
F. DROST)
ACTING COMMANDANT SA ARMY COLLEGE: COL
DISTR 90
For Action
Acting GOC Trg Fmn (Attention Col Holtzhausen)
Internal
7ite SA ARMY COL/C/701 G37 2000 02
140 ENCLOSURE 3 398
Appendix B
Signal Message Form
PHOTOSTAT COPY (Best copy available)
TO 98007693 DD 28 Jul 03
7530- N-109-4296
G.P.-S.001-0133 SIGNAL MESSAGE FORM - SEINBERIGVORN1 1)1) 975
File Reference
LC:ervenwsing: SA ARMY COL/103/2/I.
........ • '''''''''' '
Precedence Action Preeedene.e Info Date Time GroUp I-Iandling Instruction
Voorraml, Uitvoering Voorrang Info Daturntydaroep Hanteringsinstruksies
ROUTINE Routine - Routine
LiVan: an:
-ity Classification Orgitiatoc's Number
heidsk.las Opstellersnomfner.
AUTHORITY IS REQUESTED FOIL 9S007693PE LT COL. &M. PHIRI, SA INT C TO REPORT AT TEL fY COLLEGE' FROM 21 JULY 2003 TO 09 AUGUST 2003 FOR THE MOBILE PHASE MILESTONE AS ; COMPLETED AND PASSED ALL THE MILESTONES PRECEDING AND SUCCEEDING THIS ONE.
AU . (ORITY IS REQUESTED FOR THEn FOLLOWING? MEMBERS TO REPORT AT THE SA ARMY 'E DURING THE TACTICAL PHASE FOR TRAINING AND EVALUATION ON MOBILE IONS FOR THE PERIOD 03 SEPTEMBER 2003 TO .23 SEPTEMBER 2003 AS THEY HAVE TED AND PASSED ALL THE MILESTONES SUCCEEDING THESE:
cis28.s • r r: r (1_13 141
3.4 I S72FE .VETERTSVC
IS THEREFORE REQUESTED THAT THE SAID MEMBE 5.po NOT FORM PART OF THE-ORY DEVELOPMENT PHASE OF THE JCSD COURSE AN REPORT AT JCSD BR FOR ONLY
DURING THIS PHASE ON 12. JANUARY 2003 AT I :30 FOR BRIEFING ON TI-E ENT&
)UIRIES: LT COLE. LOURENS TEL: 012-674-4107.
141 ENCLOSURE 3 399
Appendix C(i)
Letter from G D Spammer to
B Q P Simelane
RESTRICTED
CMLS 5/R/98007693PE
Telephone: (01 2) 355-6108 24 June 2003
Enquiries: Brig Gen G D Spammer TO 98007693 DD 28 Jul 03 5
From: DMDC
To: SSO MDC - Col B Q P Simelane
LEGAL REPRESENTATION: 98007693PE LT COL G M PHIRI
1. Conversation between Brig Gen Spammer and Col Simelane on 24
June 03 refers. 10
2 You are hereby instructed as discussed, notwithstanding the fact that
you will be attending the ENSP course, to prepare yourself to attend to the court case of the abovementioned member on the prearranged dates of 24 and 25 Jun 03.
G D Spammer (signed) 15
(BRIG GEN G D SPAMMER)
DIRECTOR MILITARY DEFENCE COUNSEL: BRIG GEN
Internal Letter from G I Slabbert
TO 98007693
RESTRICTED DD 28 Jul 03
Telephone: (012) 355. 5250/1
Facsimile: (012) 355 5372
Enquiries: Brig. Gen G.I. Slabbert CMLS 6/R/106/8
Department of Detence
Chief Military Legal Sservices Private Bag X159
Pretoria
0001
oz-July 2003
COURT OF SENIOR MILITARY JUDGE: 98007693PE LT COL G.M. PHIRI
1. LEGSATO TT/R/106/8 dd 18 Jun 03 and telephonic conversation between
Lt Col Yarrow and Lt Col Slabbert on 01 Jul 03, have reference.
2. It may be noted that D M Pros was informed by DMDC that the latter has
addressed the subject of par 2 of the above-mentioned letter by raising the issue with Col B.Q.P. Sirnelane, the legal representative of Lt Col Phiri.
3. DMDC reported that he instructed Col Simelane to rril
■. If, Mr President, nine years into our democracy founded on justice, human dignity,
conciliation and national unity, I am, for whatever TRC afterthought reason, denied asidential support to resettle my family in South Africa from Tanzania where they are
iggling, how else will I do it when in the SANDF, I am once more embattled by the 30
-e tribalism that is busy unfairly charging and demoting me?
Clearly, Mr President, it would only be too fair for me to politely decline further
ningly innocuous requests to assist in SA Army's demotion posts like "S01 Renewal" predecessor in which particular post is a full colonel who 1998 when I was already a nant colonel, was a Major or a Captain) which assistance, when granted, is in smoke-rooms later turned into my full time post. I will, like a good soldier, report to work
every morning and leave my workplace only at 4.15 pm. I will nonetheless do ,g else as any act of goodwill until granted, as is my right, a full-Colonel or even
tier General's post. My five years in service to the SANDF have taught me that
itive action is not for me. However, I know I earned my stripes as a freedom fighter 40
nior officer; and I will not collaborate in my own destruction at the hands of officers
me, drunk with the power of seniority of rank they have over me, yet green with
ivy over my talents, my professionalism and my integrity.
PHOTOSTAT COPY (Not Accurately Transcribable)
18. I will never again let them mistake my civility for docility.
L
(G. • P IRI)
(083 30 7713)
COPIES TO
The Pan Africanist Congress President: Dr Motsoko Pheko
Democratic Alliance: Mr Tony Leoh
Inkatha Freedom Party: Dr Mangosuthu Buthelezi
The New National Party: Mr Marthinus van Schalkwyk
United Democratic Movernent: Mr Bantubonke Holomisa
any Other Interested Party, Represented in Parliament 10
'ortflolio Committee for Defence: Me Thandi Modise
ormer APLA Commander:
DC Army Intelligence Formation.
)C agsato Thaba Tshwane:
ing Commandant SA Army College: \ior Defence Counsel:
Media Maj Gen Dan Mofokeng Brig Gen M.A. Kula
Brig Gen du Preez
Colonel E.F. Drost
Colonel B.Q.P. Simelane
Private Bag X1002
Thaba Tshwane 0143 SA Army College
Fax Fax
29 July 2003 5
To/ Maj K Boshoff Fax/ (012)6723300 Tel (012)6723526
Aan: Faks: No:
From/ Capt R Botha Fax/ (012)6744106 Tel (012)6744003
Van: Faks: No:
Object/Onderwerp: WITHDRAW FROM JCSD COURSE: LT COL G M PHIRI. 10
Enclosed find letter with all relevant information.
For your information
(R BOTHA)
SA ARMY COLLEGE: CAPT
RESTRICTED
SA ARMY COL\R\103\2\1\0537
Telephone: (012) 674 4002
Fax: (012) 674 4106
Enquiries: Col E.F. Drost
k,_.213EST TO WITHDRAW FROM JCSD COURSE SA Army College Private Bag X1002 Thaba Tshwane 0143
29 July 2003
1. Telephone conversation between Brig Gen V.A. Nelwamondo and Col E.F. Drost on 29 July
2003 at 07:15 has reference.
Enclose find the letter of Lt Col G.M. Phiri to withdraw from the JCSD Course dater 28 Jul 03. For y ur further action.
APT R. BOTHA)
TING COMMANDANT SA ARMY COLLEGE: COL
nal for Action
3A Army Training Formation (Attention: Brig Gen V.A. Nelwamondo)
98007693PE
Telephone: 083 308 7713 Enquiries: Lt Col G.M. Phiri
GOC Army Training Formation Private Bag X367
Pretoria
0001
',..Ienera I
Army Intelligence Formation Private Bag X367
Pretoria
0001
26 July 2003
EQUEST FOR WITHDRAWAL FROM JCSD 2003 COURSE
pendix A: Open Letter to The State President dated 18/07/03
)endix B: Signal for Lt Col G.M. Phiri to redo a Module dated 12/12/02
endix C: Court Trial Billed for 24&25 July 2003 (i&ii) dated 24/n6/03&02/07/03 Indix•D: "The Impossible Module to Redo" (i&ii) dated 06/06/01&16/07/01
The combination of blatant hostility and callousness towards my current efforts on Army College course has forced me to hereby humbly seek out.
Here are some of the incidences of calculated inconsiderateness:
A College official directly responsible for my welfare on the course and the most knowledgeable of them all on both my course and court matters (he happens to be a state witness in the case I am facing) wilfully confused his two roles (1. witness 2 Directing Staff) when, last week, he refused to entertain challenges I am facing on the course saying "he can only communicate with my lawyer and not me". The officer even declined to take his copy of the official Grievance Letter addressed to the State President (Appendix A). Despite his duties on the College and his foreknowledge, he in that regard had also deliberately failed to inform or remind the JCSD Branch that
i. I was joining the College wef 21 July 2002 (Appendix B) and that
therefore, as the Branch was to my disadvantage 18 July 2003 already providing the module wherewithal to the other students, I, to be reasonably at par with the others, had in all fairness to be considered for both time allocation and logistical support.
ii. I was appearing for court trial 24&25 July 2003 (Appendices C) and
would therefore need extra consideration for lost days.
b. An instructor who is also a colleague of mine at the Army Intelligence
Formation wrote me negative orders 23 July 2003 for submitting incomplete work even though the instructor in question (professing undying support for
i
me as a colleague while proffering me the negative orders to sign) would in a perfect world of "true comrades" have been the first one to forewarn me about the "premature start of the module" which he did not.
I cannot sit on on a course and justify those of my own Intelligence Formation colleagues and supervisors who all the years of the discriminatory acts against me in relation to this course have willed me to fail (see Appendices D) just as I cannot be expected to meet humanly impossible standards just because I am Phiri. I am ready to 'esume this or any other course once there is a new commitment to treat me fairly like any )then member of the SANDF who naturally has his sense of belonging nursed and his fights as a student protected.
4. In so far as what will happen to me back at my own Formation, I have
already made my point in yet another grievance letter written my Commander-in-Chief, the State President (Appendix A); I would
therefore expect all concerned, particularly Brigadier General Kula and 20
Colonel Brandsen to observe the standard protocol in matters of public administration in that regard, but as for this particular collegial challenge, I look to you for prompt relief, General Nelwamondo.
P IRI)
UNDER INSTRUCTION
Alan
army Training Formation mmandant SA Army College arse Leader: JCSD Branch Mtention: Brig Gen V.A.Nelwamondo Attention: Col E.F. Drost
nation
he State President 30
y Intelligence Formation Attention: Brig Gen M.A. Kula
GOC Army Career Management Army Intelligence Formation Chief of Staff
Attention: Brig Gen V W Mdletye
Attention: Col A J L Brandsen
APPROVED/NOT APPROVED 5
(A. NELWAMONDO)
GENERAL OFFICER COMMANDING ARMY TRAINING FORMATION: 10
BRIG GEN
received from Lt Col Phiri with the Admin clerk of the Senior Branch as well as the message that I will bring Lt Col Phiri once the Col is free to attend to him. The CI phoned me icw Lt Col Phiri's attendance at Col Drost. I immediately left for the lecture room but could not find Lt Col Phiri in the
class. The OUI on duty explained to me that Lt Col Phiri left the class earlier 5
on but told nobody where was he going to. I then sent one OUI (Maj Erasmus) to help me look for the Lt Col but all failed.
During the cause of the day at or about 1115B all OUI except Lt Col Phiri arrived at the Wildebees mess for dress rehearsals for the certificate ceremony as per Weekly programme and clearing out Admin Order. At or 10 about 1215B Lt Col Phiri arrived at Wildebees mess while the rehearsals were
long in process. I indicated to him that i will, directly after the rehearsals, would like to handle off his office orders at the A/Cmdt and he affirmed. After the rehearsals I then accompanied Lt Col Phiri to the office of the A/Cmdt for Office Orders where things did not go well as Lt Col Phiri refused 15 to answer questions put to him by the A/Cmdt. He indicated that he wish
to see his Lawyers before aligning himself to anything expected of him ito the reasons for the orders.
The voice of Lt Col Phiri was rising and at a stage the A/cmdt informed him
that he is excused from his office and he left. I left the office of the A/Cmdt 20 and went back to the Wildebees mess where final preparations were being done and reported back to the CI JCSD Branch what transpired at the could
have been Office Orders.
A R Lentsoe (signed)
(A R LENTSOE)
COURSE LEADER: LT COL ARL/diy
ALREADY PART OF THE RECORD
(See page [s] 397 - 404)
SION BRIEF TO THE AC ON THE ALLEGED RACIAL DISHARMONY AT THE RMY COLLEGE : COURSE JCSD 701 G 37 2000 02
The aim of this presentation is to inform the AC on the outcome of an
ige-n on the alleged racial disharmony at the JCSD Course at the SA Army
ION REQUIRED
The following decisions are required :
t. C Army or GOC Trg Fmn to address the course before 09 Mar 01 iro the
recommendations.
SA Army College and in particular the JCSD Branch DS should introduce and confirm the use and the benefits of the course committee and how to follow channels, to students when they start with a course. The CI must have his hand on matters which might become flameable and institute corrective actions,
e following aspects will be addressed : Background.
Modus operandi.
Findings.
Options.
Implications
Recommendations.
Decision Required
JND
received a complaints letter from JCSD course members, intervened to ature of the problem whereafter Col S. 0. Mokalake and Col H.M. White
RESTRICTED 2
were instructed to investigate this matter in order to validate and verify the accuracy thereof.
MODUS OPERANDI
5. The investigation was conducted in the following manner:
a. 1G Army addressed the JCSD G 37 2000 02 course on 06 Feb 01 on the
alleged allegation letter received and requested all students to put their
hand on paper if they experienced any problems to be collected on 09
Feb 01.
b. Letters received were scrutinised for any irregularities which need to be 10
investigated.
c. Personal interviews were conducted with students, course leader and Chief Instructor.
d. Final report was drafted and distributed to those concerned. FINDINGS
6. After Intel-views with students it came out very clear that the raised racial tension
issi Je is not the problem experienced on the course.
7. The following issues came to light as the cause of the problem :
a. Students did and do not follow channels on course.
b. Students did not address issues officially either through the course committee or bmo official concerns via channels to the Course Leader, CI or Commandant of the College(some white students approach the CI on occassions, without the CI referring the students/issues back or reprimand them to use the proper channels).
c. The course committee did not address issues of common purpose to all students
d. During interviews and documentation forwarded to the Investigation Team it would appear that the course chairman did not address the needs and queries of students, but sought his own interests.
e. Students want to be dealt with on an Adult approach but did not follow an adult approach in dealing with their own internal course problems.
f. White students withdrew during the selection of the course committee, which could have had an influence on the solving of their problems. If they were part of the committee they could have had representation and their alleged issues could have been addressed
g. The course chairman think he instituted the issue of exam numbers and language policy. The Study member on course allocate Exam No's and nor the DS or other students know whom are whom. Only a list of Exam no's are given to the DS to update namelists on exam results. The language policy was officially instituted during 1994 and as such implemented at all training units.
h. Some students questioned the integrity of MPI, the institution is a professional institution and are called in by the SA Army College for each course to facilitate Group forming and the selection of the Course Committee. The CI was approached with the problem and he could have intervened to solve the problem.
i. There exists two small pressure groups/clicks(one white and one African) among the larger student, group whose objective it is/was to make life difficult for the rest on course. Each one of these groups have their own agenda(they still live in the past, whereby they still use words like "they" 20
and "we" respectively).
The students worked together academically (sindicates) until this stage of the course. Academic achievements are above standard and the course is viewed to be very successful.
k. Course management did not intervene when problems arose in the early
stages of the course which was extremely remediable.
During the interviews it came out that all students have issues to address, the )blem however is that non of them tried to solve or address any issue earlier during course. The students, rather or it is perceived by the investigation team, preferred
compile lists of problems and queries. No proof could be provided by any student 30
any allegetions. All problems caused were due to students who perceived what
)they might think or do in a course of an event, and they influenced each other with perceptions.
PIONS
The following Options are available to consider :
a. Option 1. C Army or GOC Trg Fmn to address the course before 09 Mar
01 iro the recommendations.
PHOTOSTAT COPY (Not Accurately Transcribable)
RESTRICTED 4
Option 2. SA Army College and in particular the JCSD Branch DS should introduce and confirm the use and the benefits of the course committee and how to follow channels, to students when they start with a course. The CI must have his hand on matters which might become flameable and institute corrective actions.
Option 3. Allow students to leave the SA Army College with the current atr sphere between them, as the situation will not be solved in a week's time.
Option 4. Allow the students to take hands as the future leaders of the SA 4rmy, and use the problem as a learning curve, where they will benefit mutually and have respect each other.
S
swing implications need to be considered when the options are reviewed:
ption 1. The issue could have being addressed earlier by the SA Army ollege and the SA Trg Fmn if they intervened at an earlier stage. This )uld have resulted in more serious problems and real racial issues tichcould have been more problematic to handle.
)tip 2. Will ensure a smooth running course with lesser problems students who can concentrate on the core objectives of the course. repitition of the current problem will occur.
Lion 3. The issue will always remind students that they do not need ti other, which are not in line with the Mission of the SA Army.
ion 4. Those students who are really willing to forget the past and ,s on the future will benefit from this, and they 'MI! leave the SA Army age in a more positive manner.
IONS
'my College, the Branch as well as GOC Trg Fmn could have e, when it came to light that problems are experienced which might ;sues need to be addressed in time. 30
y College must deal in the same manner with all students, vVnere channel skipping to the CI, that should be addressed accordingly, 3 addressed a problem officially. Institute a procedure spelling out Iture what channels need to be followed first before addressing he CI or Commandant of the College(favouritism should be done
PHOTOSTAT COPY (Not Accurately Transcribable)
RESTRICTED 5
with asp between the DS of the SA Army College and students).
Students must be addressed before 09 Mar 01 by the C Army vino have more )rity or the GOC Trg Fmn, before they depart from the SA Army College. The ring must be stressed :
a. They are becoming or is already senior leaders of the SA Army, who is
supposed to be an example to others when returning to their units.
b. The fact that they couldn't solve the issues on course showed that they
are either not willing to work together as one Army, one in Spirit. Students must study the concept of the Pride of Lions and will have to make a 10
decision if they want to be part of that or not.
c. Students learn from each other and through mistakes, as well as to achieve course objectives.
d. To compromise does not mean one throw standards away, instead one strengthen each others hand, and learn to respect each other.
e. Act as adults in order to be treated like adults.
The SA Army College and the course is not there to be used for pilot and political platforms or gains.
g. A Paradigm/mind shift needs to be done prior to commencing with the 20
course.
(\le propose that a Full Range Leadership Course are added as an additional on course, as the module deals with the core business of the SA Army and a a spirit of oneness and ownership. < < \AA.0LAkx—_
DNS REQUIRED
'he approval of the following decisions are required :
Option 1. C Army or GOC Trg Fmn to address the course before 09 Mar 01 iro the recommendations.
Option 2. SA Army College and in particular the JCSD Branch DS should introduce and confirm the use and the benefits of the course committee and how to follow channels, to students when they start with a course. The CI must have his hand on matters which might become flameabie and institute corrective actions.
C-"E\-A`ca,•-•-
169 ENCLOSURE 4 421
Minutes of JCSD Assessment
Board Meeting
CONFIDENTIAL 1
SA ARMY COL/C/103/2/1
SA ARMY COL/C/G37 200001
MINUTES OF JCSD ASSESSMENT BOARD MEETING HELD ON 301515B JAN 01 [N BASTION, SA ARMY COLLEGE
Appendix A: Assessment Pro Forma: 98012131PE Lt Col F.H. Makhapela, PSC
B: Assessment Pro Forma: 98007693PE Lt Col G.M. Phiri, SA Int C
C: Assessment Pro Forma: 94810298PE Maj V.T. Bekwa, SAIC (Plus previous Assessment Pro Forma dd 31 Oct 00)
D: Assessment Pro Forma: 87761888PE Maj J.M. Khumalo
PRESENT
Col E.F. Drost
Col T.C. JarviS-Bicknell Col J.H.B. Kleynhans Lt Col R. Lentsoe
Lt Col Tim Barret
Lt Col N.S. Gcanga
Lt Col E. de V. Lourens
Representing
SA Army College B MATT
CI JCSD Branch JCSD Course leader
B MATT
C Army
SA Army College
Appointment
Chairman Member Member Member Observer Member Secretary
INTRODUCTION
1. The chairman welcomed everyone present.
2. Aim. The aim of this Assessment Board was to make decisions regarding the performance of individuals on the current JCSD Course.
DISCUSSION
ITEM 1: PROCEEDINGS
3. Three of the four OUIs then appeared before the board and the board made recommendations in each case (see Appendices A to D). The forth OUI was AWOL and recommendations were made in his absence.
E
StaAti 4vt,etta
170 ENCLOSURE 4
Minutes of JCSD Assessment Board Meeting
CONFIDENTIAL:.
(E. DE V. LOURENS) SECRETARY: LT COL
(E.F. DROST) CHAIRMAN: COL
4/
Date . :7'
OF 0 IHER BOARD INIIIMBLRS
(J. I.B./K Ey' HANS) CI ,1‘..?'D BRANCH: COL
JARVIS-BICKNELL)
I MATT REPRESENTATIVE: COL
S.N. GCANG
REPRESENTATIVE. ARMY: LT COL
(R. L ''I'S( E)
COI FAD R: LT COL
171 ENCLOSURE 4
Minutes of JCSD Assessment Board Meeting
CONFIDENTIAL 3
DISTR
For Action
DCM - Attention Lt Col W. Vercuil (Appx A to D)
For Info
C Army (Chief of Personnel) (Appx A)
GOC SA Inf Fmn (Appx C plus A dd 31 Oct 00 and D) OC SA Army Int Fmn (Appx B)
Internal
Files SA ARMY COL/C/103/2/1
SA ARMY COL/C/G37 200001
APPENDIX B
TO MINUTES OF
ASSESSMENT BOARD DDS JAN 01
ASSESSMENT PRO FORMA
Force No: 98007693PE Rank: Lt Col
;Name: G.M. Phiri Corps: SA Int C
Unit: Defence Intelligence Integrating Force: APLA
Course No: 701 G37 20002 Course Description: JCSD Course
1 Summary of Results
Serial No Subject Examination % Re-examination Course Average
a b c d
I BFS 27.86 72.92
2 VO 0 65.73
3 10 0 70.42
4 BC 0 67.39
5 Milestone 2 32.43 67.57
Note: An asterisk indicates an improved mark after a re-examination.
2. Retraining. Re-training was conducted. Lt Col Phiri did not submit a product.
3. Non-attendance of Training
Serial No Reasons DTG Remarks
a b c
1 Leave None None
2 Sick Leave None None
Training History. The member has completed the following courses:
Serial No Course Year Result
a b c
1 Brdg Trg Snr Off 1998 Passed
2 S02 Int 1999 Passed
3 Gein Sub Unit OC 2000 Passed
Previous Attempts. Not applicable.
Comments by OUI /&,-1-724/7t7e0-^7'S /z 6
F4 2t73:f 6t Ze; /-izz /4)4/-5
7 /4 cre-zO
(G.M. PHI R4)
,JFFICER UNDER INSTRUCTION: LT COL
7. Comments by Course Leader. Officer does not have the theoretical or practical
background.
8. Recommendations by the Chief Instructor. Officer can do a re-evaluation if he wishes. He can remain to gain experience.
(J.H.B. K EYNHANS) CT JCSD BRANCH: COL
9. Recommendations by Assessment Board
Lt Col Phiri will be afforded a second chance to write the Mobile Operations Phase. He should continue with the course but should rewrite whatever he fails.
10. Recommendations with regard to Supplementary Training,
10
SIGNATURES
(S.N. GCANG
REPRESENTATIVE C ARMY: LT COL
C
( .C. JARVIS-BICKNELL)
B MATT REPRESENTATIVE: COL
'E.F. DROST)
ACTING CHAIRMAN OF THE ASSESSMENT BOARD: COL
)ate cz3 ..
ENCLOSURE 4
Minutes of JCSD Assessment Board Meeting
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
APPEAL COURT CASE NUMBER: A474/08
In the matter between:
THE MINISTER OF DEFENCE
DIRECTOR, MILITARY PROSECUTIONS, DEPARTMENT OF DEFENCE
and First Appellant (First Applicant a quo)
Second Appellant (Second Applicant a quo)
GOODMAN MANYANYA PHIRI Respondent
(Respondent a quo)
APPEAL
AGAINST THE WHOLE OF THE JUDGMENT AND ORDER, INCLUDING THE ORDER FOR COSTS, HANDED DOWN BY THE HONOURABLE MR ACTING JUSTICE SITHOLE IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) AT PRETORIA ON 4 APRIL 2008.
LEAVE TO APPEAL HAVING BEEN GRANTED ON 30 MAY 2008.
ON BEHALF OF APPELLANTS
STATE ATTORNEY
Bothongo Heights
8' Floor 167 Andries Street PRETORIA
Tel: (012) 309 1548
Ref: CJ Malan/1235/2004/Z33 ON BEHALF OF RESPONDENT
MSIZA, KRUGER & BEMBE INC 793 Merton Street
Arcadia
PRETORIA
Tel: (012) 342 7282 Ref: MSIZA/J100/04
• -4 • 0 ■
VOLUME 6/6
(Pages 428 - 476)
LOM BUSINESS SOLUTIONS (PTY) LTD
t/a SET - LK CONSORTIUM
4th FLOOR OLIVETTI HOUSE
PRETORIA, 0002
TEL: (012) 326-1881
CASE NO: 26284/05
INDEX
Original Appeal
Page No DESCRIPTION Page No
VOLUME 6
JUDGMENT (2008-04-04)
COURT ORDER (2008-04-09)
Application for Leave to Appeal 428
452 - 451
dated 2008-04-30 453 - 461
JUDGMENT (2008-05-30) (Leave Granted) . . . . 462 - 464
COURT ORDER (2008-05-30) 465
Notice of Appeal dated 2008-06-04 466 - 474
Formal Documents 475
Certificates 476
IN THE HIGH COURT OF SOUTH AFRICA /ES
(TRANSVAAL PROVINCIAL DIVISION)
CASE NO: 26284/05
I DATE:
(1) REPORTABLE: YESN.
(2) OF INTERESy0 OTHER JUDGES: YES/W.
(3) REV1SED.V
rilf, ftiti
4-4661kuRE
IN THE MATTER BB EN: THE MINISTER OF DEFENCE
DIRECTOR, MILITARY PROSECUTIONS DEPARTMENT OF DEFENCE
AND
JUDGMENT
SITHOLE, AJ
A. INTRODUCTION
[l] This is an application for a declaratory order which has been brought to this court
by both applicants on 20 June 2006. Having read the relevant papers and having heard argument from counsel for the respective parties, I reserved judgment and promised to give it in due course, if needs be. I now give it as follows: The relief sought by applicants is couched 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."
B. FACTUAL BACKGROUND
[2] The facts which serve as background to this matter are, in my considered opinion, 10
by and large common cause. They may briefly be stated as follows:
2.1 On 9 March 2001 the respondent (Lieutenant Colonel Phiri) was arraigned
to appear before the military court to face and answer to several disciplinary and/or criminal charges preferred against him by the State. The relevant charge-sheet indicates that the respondent (referred to therein as "the accused") is subject to the Military Discipline Code ("MDC") 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 (as amended), and is charged with the following offences: 20
(a) three contraventions of section 17 of the MDC (ie using
threatening, insubordinate or insulting language);
(b) three contraventions of section 46 of the MDC (conduct prejudicial to military discipline);
(c) three contraventions of section 45(a) of the MDC (riotous or unseemly behaviour);
(d) two contraventions of section 14(b) of the MDC (absence without leave and non-attendance where required to attend);
(e) one contravention of section 19(2) of the MDC (disobeying lawful commands or orders); and
(f) the common law crimen injuria read with section 56 of the MDC.
It cannot be doubted that the above-mentioned charges, if viewed in the context of military culture and milieu, are extremely serious to the extent that they could lead to respondent's dismissal from the South African National Defence Fo4e ("SANDF") should he be convicted thereof.
2.2 These charges, which the respondent considers as trumped up, emanate
from some investigations which were conducted during the respondent's attendance of the Junior Command Staff and Duties Course ("JCSD") at the Army College in 2001. It would appear that one Brigadier-General Mashoala had, inter alia, extended an invitation to the Officers Under Instruction ("OUI"), of whom the respondent was one, to put their
grievances in writing and to hand them in to the investigating officers, 20
namely, Colonel H M White and Colonel S 0 Mokalake. It would also
JUDGMENT 434
7
3. Enclosure 4 thereof relating to the B.MATT intervention
report is truncated and incomplete as it lacks the deliberations by our client and the Board's response. Full communicare thereof is missing in its entirety."
It is quite clear from the letter above that the respondent was discontented with what the applicants had furnished him with. His dissatisfaction led him to believe that the applicants are deliberately withholding certain documents from him.
2.9 The applicants' response to the above letter of 3 May 2004 was transmitted
through the State Attorney to respondent's attorneys that there are no documents which are withheld from the applicant. It was proposed by the Legal Section of the DOD that a round-table conference be held with respondent's attorneys in order to resolve the issue of the alleged outstanding documents. 1Q
2.10 Before the round-table conference could be held, the respondent's counsel in the military court requested to be placed in possession of a Ministerial Investigation Report relating to the respondent, this report did not form part of the documents referred to in the court order. The legal section of the DOD was of the view that this request should be handled separately from the documents initially requested by the respondent. 20
appear that certain statements concerning allegations of racial disharmony in the Army College were obtained from the aggrieved OUI's, who included some white students. Accordingly, a report was compiled by the investigators and presented to the Army College after all the documents in respect of the investigation had been filed with the Inspector-General's Army internal office.
2.3 During respondent's trial in the military court some witnesses apparently
made reference to the statements and reports compiled during the respondent's attendance of the JCSD course at the Army College. This prompted the respondent to request the relevant authorities within the Department of Defence ("DOD") to be given access to the said statements and reports. It would appear that, for some reason or other, the DOD authorities failed or neglected to grant respondent access to the said statements and reports because he contends that he was denied access to these documents.
2.4 On 23 March 2004 the respondent, after having exhausted internal
remedies, brought an urgent application before this court for a declaratory order, inter alia, that he is entitled to have access to the documents and/or information in the possession of the DOD, and that the hearing in the
military judge's court against him be stayed pending the orders prayed for. 20
In his founding affidavit the respondent (then the applicant), inter alia,
alleged that he had had no sight of the reports and is therefore prejudiced in that he was unable to conduct an effective cross-examination of the witnesses who have testified against him in the military court.
2.5 The respondent (then the applicant) also prayed that the DOD (as
represented by the Minister of Defence) alternatively, Major H S Pretorius (as the fifth respondent) be ordered and directed to furnish him, within seven days of the date of the court order, 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 the acting commandant of the South African Army College Colonel Edward France Drost to look into complaints against Lieutenant Colonel Phiri, March 2001;
(c) the B.MATT intervention report (intervention at the South African Army College — January/February 2001 by the British Military advisors to South African National Defence Force).
2.6 It would appear that the said application was unopposed and on the same
day it was brought, the court, per CLAASSEN J, granted the orders prayed for in the relevant draft order which was made an order of court. Stated otherwise, prayers 2, 3, 4 and 6 of the notice of motion were granted. The court 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 respondents shall, at the commencement of the hearing, prove special grounds why the material should not be furnished to the applicant.
2.7 The legal section of the DOD took it upon itself to procure and collate the
requested documents in order to comply with the court order. Bundles of documents were prepared and labelled as "Enclosure 1 to Enclosure 4". These were forwarded to respondent's attorneys by the State Attorney on behalf of the applicants.
2.8 In a letter dated 3 May 2004, the respondent's attorneys responded, inter 1Q
alia, by stating that:
"1. Enclosure 1 thereof is incorrect, in that what is sought in
terms of the court order is specifically the SA Army Inspector General's report instigated by SA Army College presiding General Moshoana, which report was finalised on 6 March 2001. Full transcript of the witnesses' testimony is required, as it is relevant to the proceedings presently before the court of a Military Judge, Thaba Tshwane.
2.11 On 21 September 2004 the round-table conference was held in the office of the State Attorney Pretoria. It was apparently attended by the legal representatives of the parties. It would also appear that not much was achieved at this gathering because the parties failed to reach agreement on the question of compliance with the high court order dated 23 March 2004. The parties were poles apart in that whereas the DOD adopted the position that they had provided the respondent with the required documents and had thus complied with the high court order, the respondent on the other hand, was of the view that the DOD did not comply with the court order as it had failed to provide certain requested documents in particular the document titled "South African Army Inspector General's report involving Phiri et al at the South African Army College; February to March 2001".
2.12 It would appear that subsequent to the said round-table conference, ie on 8 October 2004, the military court trial of the respondent was postponed to 2 February 2005 and the presiding judge ruled and recommended that the DOD should hand over all the documents, including the Ministerial Investigation report. The respondent's trial in the military court was thus stayed in terms of prayer 2 of the court order of 23 March 2004, pending the resolution by this court of the issue of compliance or non-compliance with such order.
JUDGMENT
9
C. THE ISSUES TO BE DECIDED BY THE COURT
[3] It is clear from the foregoing set of facts that the first issue which has to be
decided by this court is whether the applicants, on behalf of the DOD, have complied with the order of court of 23 March 2004. In order to decide the question one would, of necessity, have to take a closer look at the documents supplied to the respondent to determine whether they represent full and substantial compliance with the said order. The second issue to be decided is whether the proceedings in the military court against the respondent, which were stayed in terms of the court order referred to above, be allowed or ordered to resume and continue. The third issue to be decided is, of course, one of costs.
D. THE ONUS OF PROOF
[4] The onus of proof on a balance of probabilities, rests with the first and second
applicants that the court order of 23 March 2004 has been fully complied with.
E. THE APPLICANTS' CASE
[5] Counsel for the applicants, Advocate Mohlamonyane, argued, contended and
submitted that the applicants have complied fully with the order of court of 23 March 2004, more particularly in that:
5.1 Under cover of a letter dated 19 April 2004 copies of documents were sent
to the respondent in compliance with the court order. These documents
were contained in what is referred to as "the bundle of enclosures".
JUDGMENT 437
10
Enclosure 1 is the South African Army Inspector General's report involving Phiri and others.
5.2 The respondent, in terms of a letter dated 3 May 2004, addressed by
respondent's attorneys to applicants' attorneys, states that Enclosure 1 "is incorrect", and he qualified the wording of prayer 4(a) of the said court order by stating that he specifically seeks a South African Army Inspector General's report instigated by the South African Army College presiding General Moshoana, which report was finalised on 6 March 2001. The applicants argued that the court order makes no mention of a report
specifically "instigated by the South African Army College presiding 111
General Moshoana".
5.3 In the same letter the respondent's attorneys indicated that respondent also
requires a "Full transcript of the witnesses' testimony". Counsel for applicants contended and submitted that neither the relevant prayer in respondent's notice of motion nor the court order makes mention of any transcript of witnesses' testimony. Besides, no transcript of any witnesses' testimony exists, because no formalised statements of witnesses were recorded because no formal investigation was held. Matters were investigated by means of conversations and/or interviews, etc. This much
was conveyed to the respondent by Lieutenant Colonel J H P Coetzee in a 20 letter dated 1 June 2004.
JUDGMENT 438
11
5.4 In the same letter it was explained to the respondent that the Inspector
General's report which is sought by the respondent was not compiled by Brigadier Mashoala but by Colonel Mokalake and such report is dated 25 June 2001 and not 6 March 2001.
5.5 That the report sought by the respondent is one that has "complaints about
racial disharmony and ethnic conflict" first came to the applicants' awareness after having had sight of the respondent's answering affidavit, and that in fact no such Inspector General's report dated 6 March 2001 exists. What exists is a Decision Brief which was presented by Colonel White to the Army Council on 6 March 2001. That the said Decision Brief is the one that dealt with alleged social disharmony at the South African Army College, and that reference to 'Phiri et al" in prayer 4(a) of respondent's notice of motion and in the Inspector General's report means Phiri and others such as Brigadier Mashoala, Colonel Drost, Colonel Kleynhans and others referred to by Colonel White in the Decision Brief.
5.6 The allegation by respondent that the charges he is facing in the military
court were precedent to the Army Inspector General's report is denied by the applicant as it is not factually correct. That the charges came about as a result of the instruction by the Acting Commandant of the South African Army College, Colonel E F Drost. That this is clear from Enclosure 3
JUDGMENT
12
which contains statements of the complainants in the respondent's trial in the military court, and Enclosure 2 which contains the recorded investigation into allegations of insubordination against the respondent.
5.7 As to the B.MATT Intervention report, which is Enclosure 4, despite the
respondent's protestation that this report "is truncated and incomplete as it lacks deliberations by him and the Board's response", the respondent was made aware that in the Board meeting (composed of SANDF and British Force officers) no deliberations were minuted. However, the respondent was offered an opportunity by the Board meeting to comment in writing and he did so on form B2. The secretary for the Assessment Board, which was convened for the then Junior Command and Staff Duties Course ("JCSDC") and which respondent attended as an Officer Under Instruction ("OUI") confirmed in an affidavit that she did not minute respondent's comments to the Assessment Board and that respondent was given an opportunity to make written comments on the appendix allocated to him during the proceedings of the Board. In the premises, the applicants submit that the respondent's complaint about the so-called B.MATT report has no substance and is devoid of any truth. Applicants ask for costs of respondent's opposition to this application.
F. THE RESPONDENT'S CASE
JUDGMENT 440
13
6. Counsel for the respondent, Advocate Ncongwane, argued, contended and
submitted that the applicants have not complied with the court order of 23 March 2004, more particularly in that:
6.1 It is quite evident from Lieutenant Colonel Coetzee's letter dated 1 June
2004 that the grievances at the Army College were reduced to writing by the members of the OUI's; that this allegation is also confirmed by the affidavit of Colonel White dated 20 September 2004; that it therefore follows that the statement and/or letters would invariably be part of the Inspector General's report that the respondent seeks to be furnished with.
6.2 The respondent repeats, word for word, what he stated in his answering JD
affidavit that Colonel White does refer to statements of grievances put on paper by members or students and that those grievances were to be handed over to her and Colonel Mokalake. These statements, letters and written grievances, according to respondent, form part of the Inspector General's report that the applicants refuse to furnish him with.
6.3 The respondent submits that there was more than one letter received by
Colonel White from the group of students at the Army College and such letters were used for compiling the Inspector General's report.
6.4 The respondent further submits that the applicants simply ignored the
order made under prayer 3, in terms of which the court declared that the 20
JUDGMENT
14
respondent (in this case) is entitled to have access to documents and/or information held by the applicants (in this case) in the respondent's exercising or protecting his right in a trial pending in the military court. In this regard, according to respondent, the applicants were ordered by the court to furnish the respondent with the ministerial investigation report. The applicants seem to be contending that the respondent is not entitled to this report as same is not specifically mentioned in the court order.
6.5 It is the respondent's submission that the applicants have, for obvious self-
serving purposes, misread the court order of 23 March 2004. Respondent also submits that he is accordingly entitled to the ministerial report of which the applicants are in possession and have been ordered by the military court to furnish the respondent with copies thereof
6.6 The respondent states that the applicant's contention that the ministerial
report does not exist is irrelevant, in view of the order made by the military court, which order is not denied by the applicants. The respondent submits that the deponent to the applicants' replying affidavits admits that the respondent went to Colonel White's office on 5 March 2001. Colonel White admits that when respondent came to her office she was finalising the said report. She, however, conveniently states that the report she was referring to was actually the Decision Brief which forms part of the documents furnished to the respondent.
JUDGMENT 442
15
6.7 It is also the respondent's submission that the applicants' contention that
the Inspector General's report sought by him which deals with alleged racial disharmony and conflict at the South African Army College has turned out to be the Decision Brief is incorrect. In support of this statement respondent referred the court to page 157 of the Decision Brief, paragraph D thereof in which the following words appear:
"d. Final report was drafted and distributed to those
concerned."
The respondent submits that the Inspector General's report he is seeking is
a clearly different document from the "Decision Brief' as claimed by the 10
applicants.
6.8 Furthermore, the respondent states that the applicants' contention that it
was not Brigadier General Mashaola who compiled the report is irrelevant because the fact of the matter is that the applicants have been ordered by the court to furnish the respondent with the said report. Whether such report was compiled by Brigadier General Mashaola or by Colonel Mokalake is irrelevant and immaterial. Besides, submits respondent, it is not known who compiled the so-called Decision Brief on which the applicants rely as being the Inspector General report sought by the
20
respondent.
JUDGMENT
16
6.9 The respondent contends that the allegation by the applicants that the
Investigative (sic) General report finalised on 6 March 2001 does not exist should be rejected for lack of evidence. That what is common cause is that there were two investigations conducted at the Army College. The result of the one investigation was the Inspector General report dated 25 June 2001 (ie Enclosure 1) and the other investigative process did not lead to or produce any Inspector General report at all. It follows that the Decision Brief is not an Investigative (sic) General's report. It is undated and its author is unknown. Accordingly, the applicants have failed to comply with the order of court.
6.10 The respondent further states that the order of court dated 23 March 2004 was not challenged by the applicants. It is an order in terms of which the applicants are ordered and directed to furnish the respondent with the South African Army Inspector's report involving the respondent et al. The applicants have not complied with the order in this regard. For applicants to contend that the said report is a Decision Brief is a falsehood and this means that the applicants have not approached the court with clean hands, and this application should be dismissed on this ground alone, so submits the respondent.
JUDGMENT 444
17
6.11 Lastly, the respondent makes the submission that he, as an accused person, is entitled in terms of the Constitution Act, 2000 sic of 1996, to be furnished with all the documents and information relevant to the charges and (sic) that will enable the respondent to conduct his case at the military court without these criminal proceedings being vitiated by not being free and fair. This, respondent contends, is the basis upon which the court made an order of 23 March 2004.
6.12 The respondent concludes by stating that the applicants' prayer that the proceedings in the military court be proceeded with against him, when the
applicants have not complied with the order of court of 23 March 2004 10
and that of the military court judge of 8 October 2004 is both untenable
and unconstitutional. It follows that the applicants have failed to discharge the onus of proof resting on them and respondent therefore asks that the application be dismissed with costs on a scale as between attorney and own client.
ANALYSIS AND FINDINGS
It is evident from the foregoing contentions and submissions of the parties that there are two reports at issue, namely, (a) the South African Army Inspector General's report involving Phiri et al at the South African Army College:
February to March 2001; and (b) the Ministerial Investigation Report to be 20
handed to the respondent's counsel in terms of an order of the military court dated
JUDGMENT
18
8 October 2004. For ease of reference, I shall refer to the first report as the "IGR" and the second as the "MIR". It is a factual matter as to whether the respondent has been furnished with both the IGR and MIR by the applicants. Such factual question is the key to deciding whether there has been full compliance with the order of court as formulated in paragraph 3 supra. I shall deal with both reports seriatim below.
The Inspector General's Report ("IGR")
[8] Before I deal with the IGR, I may at the outset state and make the finding that the
B.MATT intervention report is not in issue notwithstanding the respondent's complaint that it "is truncated and incomplete" as it lacks the deliberations of the respondent and the Board's response. The reason for this finding is that this report was not contested on behalf of the respondent during argument. Besides, evidence indicates that no such report exists because the relevant deliberations were not minuted as B.MATT did not have any intervention mandate bestowed upon them. Only the JCSD Assessment Board had such authority and the respondent was fully aware of this fact. He was called upon to comment in his capacity as an Officer Under Instruction ("OUI") and he wrote:
"All reservations I had were expressed during the meeting. I am honoured to get a second chance."
These words appear on form B2 of the JCSD Assessment Board.
JUDGMENT 446
19
[9] In so far as the IGR is in issue, it is necessary, as a point of departure, to state the
exact wording of prayer 4(a) of the notice of motion which has a bearing on the order of court of 23 March 2004. It reads as follows:
"South African Army Inspector General's report involving Phiri et al at the South African Army College: February to March 2001"
(My underlining for emphasis.)
[10] It is a matter of record that the respondent was not furnished with the above report but was provided with Enclosure 1, which is the South African Army Inspector General Report C Army/IG Army/R/506/2/6 dated 25 June 2001. This means that the respondent was given the wrong IG report by the applicants. The respondent 10
does admit that he was furnished with a preliminary investigation report after a preliminary investigation was conducted against him. But he alleges that such report was incomplete in that it refers to statements of witnesses as well as the IG report which he alleges was finalised on 6 March 2004.
[11] In their replying affidavit the applicants state categorically that:
11.1 the preliminary investigation report does not make any reference to statements of witnesses but actually contains such statements;
11.2 there is no IG report finalised on 6 March 2001. Colonel White, in her supporting affidavit explains that on 5 March 2001 when respondent came to her office she told him that she was finalising a report. The report she
JUDGMENT
20
was referring to is a Decision Brief which was to be sent to the Army Council ("AC") consisting of six or seven generals; and
11.3 the word "report" is used in a technical sense in that the Preliminary Investigation ("PI") is not a report as such, but an investigation unless someone is asked to make a report.
[12] The qualification of the prayer mentioned in paragraph 9 above by the respondent's attorneys in a letter dated 3 May 2004 as to what, in fact, they required is neither here nor there. So too is the question of who instigated the report. What is important is that the IG report allegedly finalised on 6 March 2001 does not exist and can therefore not be supplied to the respondent. If, in fact, it does not exist, how then are applicants expected to deliver it to the respondent? The law does not compel the performance of impossibilities (lex non cogit ad impossibilia). Union Government v Thompson 1919 AD 426, and R v Hargovan and Another 1948 1 SA 770 (AD). This is so notwithstanding the belief and contention of the respondent that the IGR sought by him is a different document from the Decision Brief referred to by the applicants.
[13] It is also a matter of record that on 8 October 2004, ie the day respondent's case was postponed to 2 February 2005 by the Military Court, the learned presiding Judge made a ruling that the DOD should hand over all documents, including the Ministerial Investigation Report ("MIR") which the respondent requires for his
JUDGMENT
21
defence. It is also clear from a letter dated 9 July 2004 which was addressed by Colonel B Q P Simelane, respondent's senior defence counsel, to respondent's attorneys and for the information and attention of Lieutenant Colonel C H Slabbert and Major E Pakendorf of GOIC Legsato Thaba Tshwane, that the Ministerial Investigation Report ("MIR") is required by the respondent for the preparation of his defence in the military court.
[14] It is my considered opinion that the above ruling made by the military court judge is no different from the relief sought in prayer 3 of the respondent's (then applicants') notice of motion which was made an order of court by CLAASSEN J on 23 March 2004. Even if it is not elegantly phrased, the said relief is, however, couched in the following terms:
"An order declaring that the applicant is entitled to have access to documents and/or information held by the first respondent, alternatively, fifth respondent in the applicants exercising or protecting his right in a trial pending in the Military Court."
[15] In a comprehensive letter addressed to the Minister of Defence dated 8 November 2004, regarding "NON-COMPLIANCE WITH THE HIGH COURT ORDER AND THE REQUEST FOR A MINISTERIAL INVESTIGATION REPORT: SV 98007693PE LT COL G M PHIRI", the chief of the SANDF General S Nyanda recommended, firstly, that subject to its availability, the MIR be made available to respondent's defence counsel as requested and in accordance with the military
JUDGMENT
22
court's ruling. Secondly, that the Minister's approval be granted to implement the advice of the office of the State Attorney that the DOD should approach the court for a declaratory order that it has complied with the order of court of 23 March 2004.
[16] And yet in a letter written for the attention of the Chief Military Legal Services,
Major General Mmono, dated 31 January 2005 and given under the hand of the
Head of Ministerial Services: Chief Director, T A Ratsomo states, inter alia, that: "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."
[17] In the light of the foregoing developments, the question arises as to whether the applicants have complied with the order of court of 23 March 2004. To my mind, this question is the sine qua non for making a determination as to whether the second relief sought by applicants should be granted or not.
[18] In the argument presented on behalf of the applicants no submissions were made in respect of the Ministerial Investigation Report ("MIR"). Instead, submissions were made in respect of the B.MATT Intervention Report, which, as I have already found, is not in issue despite respondent's protestations about it. On the other hand, counsel for the respondent contended and submitted that the applicants have simply ignored the order made under prayer 3 in terms of which
JUDGMENT 450
23
this court, per CLAASSEN J, declared that the respondent is entitled to have access to documents and/or information held by the applicants. Counsel for respondent further submitted that the applicants, despite having been ordered by the military court to furnish the respondent with the MIR and for self-serving purposes, seem to be saying that the respondent is not entitled to this report as same is specifically not mentioned in the order of court of 23 March 2004.
[19] I am inclined to agree with the foregoing contention of counsel for the respondent, more so that in the communication by General Nyanda referred to in paragraph 15 supra the following startling view is expressed:
"16. D SANDF LS informed GOiC Legsato TT that it is advisable that 10
the request should be handled separately from the documents initially requested. He was also asked to inform the applicants' defence counsel that it is not possible to provide him with the purported minister's report unless a formal request is submitted." (My underlining for emphasis.)
In my considered opinion this statement goes against the grain of both the military court's ruling as well as prayer 3 of the order of court of 23 March 2004.
JUDGMENT
24
proof resting upon them that the MIR is non-existent and that they have complied with the order of court of 23 March 2004. It follows that this application cannot succeed and that the military court proceedings shall remain stayed until the applicants have complied fully with the said order of court. In the result, the following order is made. The application by applicants is dismissed with costs. The applicants are hereby ordered to pay the respondent's costs on the scale as between attorney and own client.
26284-2005
HEARD ON:
FOR THE APPLICANTS: INSTRUCTED BY:
FOR THE RESPONDENT: INSTRUCTED BY:
IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
APPLICANTS' NOTICE OF APPLICATION FOR LEAVE TO APPEAL
BE PLEASED TO TAKE NOTICE that the abovenamed Applicants intend to make application to the above Honourable Court for leave to appeal to the Full Bench of the Transvaal Provincial Division of the High Court, against the whole of the judgment and order, including the order for costs, granted by His Lordship, Mr Acting Justice Sithole, which judgment and order was delivered on the 9th April 2008 under case number 26284/05, in which the Applicants' application for declarators to the effect that:
1. The First Applicant has fully complied with the Court Order
granted on the 23rd March 2004 under case number 7697/04, and
2. the proceedings in the Military Court against Lieutenant
Colonel Phiri ("the Respondent") that were stayed in terms of the court order granted on the 23rd March 2004 be allowed/ordered to continue and resume, was dismissed with costs.
TAKE NOTICE FURTHER that the grounds for this application are as set out below.
1 The Learned Judge erred and misdirected himself in finding
that:
1.1 the Respondent was not furnished with the "South 10
African Army Inspector General's report involving Phiri et al at the South African Army College: February to March 2001, by the First Applicant,
1.2 the report, which is the South African Army Inspector
General Report C Army/ I G Army/ 506/2/6 dated 25 June 2001, furnished to the Respondent, marked Enclosure 1 in the bundle, was a wrong I G report by the Applicants.
1.3 the qualification of prayer 4 (a) (in annexures
"SBM2" and "GPM1") by the Third Respondent's 20
attorneys on behalf of the Respondent, in a letter
dated the 3rd May 2004 (annexure "SBM5") as to what in fact the Respondent required, is unimportant.
1.4 it is also unimportant as to who had instigated the
report, notwithstanding the fact that the terms of the order make no mention of "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"., as contained in the letter, "SBM5", dated the 3rd March 2004 from the attorneys for the Respondent.
2.
Despite finding that the IG report allegedly finalised on the 6th March 2001 does not exist, and that it can therefore not be supplied to the Respondent, the learned Judge further erred and misdirected himself by finding that the Applicants have not discharged the onus of proof resting upon them.
3. The learned Judge further erred and misdirected himself in that:
3.1 it was his considered opinion that the ruling and
recommendation made by the learned presiding Judge in
the Military Court on the 8Th October 2004 is no different from the relief sought in prayer 3 of the respondent's notice of motion: Prayer 3 reads thus:
"An order declaring that the Applicant is entitled to have access to documents and/or information held by the First Respondent (Minister of Defence), alternatively, Fifth Respondent in the Applicant's exercising or protecting his right in a trial pending in the Military Court";
3.1.1 the ruling and recommendation made by the
Military Court Judge was that the Department of
Defence should hand over all documents, including
the Ministerial Investigation Report ("the MIR") to the
Respondent which he required in order to prepare for his defence.
3.1.2 the MIR was not a subject of the High Court Order
dated the 23rd March 2004, which was granted by His Lordship, Mr Justice Claassen.
3.2 the order which is alleged by the Respondent not to have
been complied with is the High Court Order and not a ruling
or recommendation of the learned Judge of the Military Court.
3.3 His Lordship equated the ruling and recommendation of the
learned Judge of the Military Court with a declarator contained in prayer 3 of the order dated 23 March 2004. Prayer 3 of the aforesaid order is couched in general terms entitling the Respondent "to have access" to unspecified and unnamed documents and/or information. The documents and/or information are then specified and named in prayer 4.
3.4 His Lordship agreed with the contention of counsel for the
Respondent that the Applicants, for self-serving purposes, seem to be saying that the Respondent is not entitled to the MIR, despite having been ordered by the Military Court to furnish the Respondent with the said report.
3.5 His Lordship found the communication by General Nyanda,
contained in annexure "SBM15A", on pages 53 to 57 dated the 8th November 2004, startling by stating that the request for the MIR should be handled separately from the documents initially requested.
3.6 His Lordship referred to paragraph 15 without reference to
paragraph 16 regarding the communication by General
Nyanda. In terms of paragraph 15 it was the Respondent's
defence counsel (Colonel Simelane) who had requested an additional document (being the MIR) which was not one of the documents specified in the Court Order dated the 23rd March 2004. Paragraph 15, reads, in part, "the requested document is a report arising from the Ministerial Investigation relating to the Applicant (see Appendix B. Appendix B, on page 54, is a letter with reference "CMLS5/R/98007693PE dd 09 July 2004". This letter, by the Respondent's Senior Defence Counsel in the Military Court, is on page 49 (SBM13A).
3.7 His Lordship overlooked the fact that the contents of IQ
paragraph 3 of SBM13A was to draw Respondent's attorneys' attention to the fact that the Military Court was informed by Colonel Simelane that the MIR was also required by the Respondent. Hence the said ruling and recommendation by the Military Court Judge.
3.8 His Lordship found that the statement of General Nyanda, in
paragraph 16 of the communication (SBM12A) goes against the grain of both the Military Court's ruling as well as prayer 3 of the order dated the 23rd March 2004.
4. 20
A formal request to DOD for the additional document had not been made by the Respondent.
5.
The learned Judge further erred and misdirected himself by finding that:
5.1 the Applicants seem to be saying that the Respondent is not
entitled to the MIR as same is not specifically mentioned in the order of the 23rd March 2004.
5.2 the Applicants have not discharged the onus of proof resting
upon them that the MIR is non-existent. Although His Lordship found that no submissions were made in respect of the MIR, there remains ample evidential proof that the MIR is not in
existence, as contained in annexures "SBM14B", on page 52, 10
and "SBM15B", on page 58.
6.
The learned Judge further erred and misdirected himself by ordering the Applicants to pay costs.
7. The learned Judge ought to have found that:
7.1 it was crucial and important that the Respondent should
have qualified which report he sought at the outset rather
than somersault after being given the IG Army report dated the 25th June 2001.
7.2 The Respondent would have been given the MIR, subject to
its availability.
7.3 the MIR was non-existent in a similar manner that he found
that the IG report allegedly finalised on the 6th March 2001 was non-existent.
7.4 the ruling and recommendation of the Military Court could
not be equated with prayer 3 of the order dated the 23rd March 2004.
7.5 whilst the Applicants were alleged not to have complied
with the order dated the 23rd March 2004, His Lordship should not have concerned himself with what was not contained in the Court order, being the ruling and recommendation of the Military Court Judge dated the 18th October 2004.
7.6 the Applicants have fully complied with the order dated the
23rd March 2004 and ordered the Military Court proceedings to resume.
TAKE NOTICE FURTHER that the Applicants submit that there is a reasonable prospect that another Court will come to a different conclusion in respect of all these issues.
TAKE NOTICE FURTHER that the Applicants reserve the right to amplify and/or amend this notice should the need arise.
DATED AT PRETORIA ON THIS THE APRIL 2008.
STATE ATTORNEY
[Attorneys for the Applicants]
Bothongo Heights
8th Floor
167 Andries Street
Private Bag x 91
PRETORIA
Tel: (012) 309 1548/
082 389 4558
Ref: CJ Malan/1235/2004/Z33
To THE REGISTRAR OF THE HIGH COURT
PRETORIA
And
To MSIZA, KRUGER & BEMBE INC
[Attorneys for the Respondent] 793 Merton Street
Arcadia
Tel: (012) 342 7282
Ref: MSIZA /J100/04
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NISIZA KRUGER,,CCar'
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IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
PRETORIA CASE NO: 26284/05
DATE: 2008-05-30
APP
(1 )
(3) CF R.,:TLRL'IST TO OTHER JUDGES
(2)
REVISED V
DATE
h .P
THE MINISTER OF DEFENCE
DIRECTOR, MILITARY PROSECUTIONS DEPARTMENT OF DEFENCE
1St Applicant
,nd
z Applicant
and
GOODMAN MANYANYA PHIRI Respondent
JUDGMENT
SITHOLE AJ: The application for leave to appeal by the applicants revolves around two issues and these were the issues which were the basis for the decision given in my judgment. These issues involve two reports namely, the Inspector General's report and the Ministerial Investigation report.
Counsel for the applicants Mr H. de Vos argued passionately that the Ministerial Investigation report does not come into play in the decision and therefore this court erred in making a decision about it, more so that it is a decision of the Military Court and it is referred to in correspondence between that court and the respondent and besides, this court has not had access to any documentation which served in the Military Court.
So totally it is irrelevant, it falls outside the scope of this court and to that extent, counsel argued that this court erred. Furthermore
10 it was argued that this court ought not to have equated the contents of prayer three which is the declarator in the order given by my learned brother Claassen J, in March 2004. I should not have equated that within the Ministerial Investigation report.
These points are arguable. Counsel for the respondent has put up a strenuous argument against these points, but now that they are found to be arguable it may become necessary that they be thoroughly ventilated in particular the question of the relevance or irrelevance of the Ministerial Investigation report and if they have to be fully ventilated in another forum, that forum might come to a
20 different perception or a different conclusion as far as the applicability
of the Ministerial Investigation report.
I steadfastly am of the view that this court cannot ignore the rulings of the Military Court. If that court ruled that the MIR, that is the Ministerial Investigation report should be produced then so be it and as much as this court is enjoined to uphold the constitution and to see
to it that the rights of the respondent are upheld, this court cannot close a blind eye to that.
So having reread the papers, and having heard the spirited argument of counsel on both sides, I am of the considered opinion that leave to appeal should be granted, in order that this matter be thoroughly ventilated as I have said and possibly the forum which will hear this matter once more, will come to a different conclusion.
In the result I make the following order this morning.
ORDER
10 Leave to appeal is granted, to the full bench of the Transvaal
Provincial Division, that is this court. So it is not leave to appeal to Bloemfontein but to this court first. Costs shall be reserved. So it is leave to appeal is granted to the TPD full bench and costs are to be reserved.
COURT ORDER 465
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
PRETORIA 30 May 2008
BEFORE THE HONOURABLE MR JUSTICE SITHOLE, AJ
In the matter between:
THE MINISTER OF DEFENCE 1st APPLICANT
DIRECTOR, MILLITARY PROSECUTIONS
DEPARTMENT OF DEFENCE 2nd APPLICANT
And
GOODMAN MANYANYA PHIRI RESPONDENT
HAVING HEARD counsel for the parties and having read the application for leave to appeal against the judgment of the Honourable Justice SITHOLE, AJ delivered on 9 April 2008.
IT IS ORDERED
1 THAT the application for leave to appeal is granted to the full bench of this
division.
2. Costs reserved.
BY THE COURT
finL
GISTRAR
Att: STATE
HIGH COURT TYPIST: RIA DAVEL
IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
ase No.: 26284/05
In the matter between: cv001
THE MINISTER OF DEFENCE First Appellant
DIRECTOR, MILITARY PROSECUTIONS,
DEPARTMENT OF DEFENCE Second Appellant
and
GOODMAN MANYANYA PHIRI Respondent
APPELLANTS' NOTICE OF APPEAL
BE PLEASED TO TAKE NOTICE that the Appellants (Applicants in the court a quo) hereby give notice to appeal to the Full Bench of the Transvaal Provincial Division of the High Court, against the whole of the judgment and order, including the order for costs, granted by His Lordship, Mr Acting Justice Sithole, which judgment and order was delivered on the 9th April 2008 under case number: 26284/05, in which the Appellants' application for declarators to the effect that:
2. The proceedings in the Military Court against Lieutenant
Colonel Phiri ("the Respondent") that were stayed in terms of the court order granted on the 23rd March 2004 be allowed/ ordered to continue and resume, was dismissed with costs.
TAKE NOTICE FURTHER that the grounds of appeal and the findings of fact and rulings of law sought to be appealed against are as set out below:
1 The Learned Judge erred and misdirected himself in finding
that:
the Respondent was not furnished with the "South African Army Inspector General's report involving Phiri et al at the South African Army College: February to March 2001, by the First Appellant,
1.2 the report, which is the South African Army Inspector
General Report C Army/ I G Army/ 506/2/6 dated 25 June 2001, furnished to the Respondent, marked Enclosure 1 in the bundle, was a wrong I G report by the Appellants.
1.3 the qualification of prayer 4 (a) (in annexures
"SBM2" and "GPM1") by the Third Respondent's
attorneys on behalf of the Respondent, in a letter
dated the 3rd May 2004 (annexure "SBM5") as to what in fact the Respondent required, is unimportant.
1.4 it is also unimportant as to who had instigated the
report, notwithstanding the fact that the terms of the order make no mention of "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"., as contained in the letter, "SBM5", dated the 3rd March 2004 from the attorneys for the Respondent.
2.
Despite finding that the IG report allegedly finalised on the 6th March 2001 does not exist, and that it can therefore not be supplied to the Respondent, the learned Judge further erred and misdirected himself by finding that the Appellants have not discharged the onus of proof resting upon them.
the Military Court on the 8th October 2004 is no different from the relief sought in prayer 3 of the respondent's notice of motion: Prayer 3 reads thus:
"An order declaring that the Appellant is entitled to have access to documents and/or information held by the First Respondent (Minister of Defence), alternatively, Fifth Respondent in the Appellants' exercising or protecting his right in a trial pending in the Military Court";
3.1.1 the ruling and recommendation made by the
Military Court Judge was that the Department of Defence should hand over all documents, including the Ministerial Investigation Report ("the MIR") to the Respondent which he required in order to prepare for his defence.
3.1.2 the MIR was not a subject of the High Court Order
dated the 23rd March 2004, which was granted by His Lordship, Mr Justice Claassen.
3.2 the order which is alleged by the Respondent not to have
been complied with is the High Court Order and not a ruling
or recommendation of the learned Judge of the Military Court.
3.3 His Lordship equated the ruling and recommendation of the
learned Judge of the Military Court with a declarator contained in prayer 3 of the order dated 23 March 2004. Prayer 3 of the aforesaid order is couched in general terms entitling the Respondent "to have access" to unspecified and unnamed documents and/or information. The documents and/or information are then specified and named in prayer 4.
3.4 His Lordship agreed with the contention of counsel for the
Respondent that the Applicants, for self-serving purposes, seem to be saying that the Respondent is not entitled to the MIR, despite having been ordered by the Military Court to furnish the Respondent with the said report.
3.5 His Lordship found the communication by General Nyanda,
contained in annexure "SBM15A", on pages 53 to 57 dated the 8th November 2004, startling by stating that the request for the MIR should be handled separately from the documents initially requested.
3.6 His Lordship referred to paragraph 15 without reference to
paragraph 16 regarding the communication by General
Nyanda. In terms of paragraph 15 it was the Respondent's
defence counsel (Colonel Simelane) who had requested an additional document (being the MIR) which was not one of the documents specified in the Court Order dated the 23rd March 2004. Paragraph 15, reads, in part, "the requested document is a report arising from the Ministerial Investigation relating to the Applicant (see Appendix B. Appendix B, on page 54, is a letter with reference "CMLS5/R/98007693PE dd 09 July 2004". This letter, by the Respondent's Senior Defence Counsel in the Military Court, is on page 49 (SBM13A).
3.7 His Lordship overlooked the fact that the contents of
paragraph 3 of SBM13A was to draw Respondent's attorneys' attention to the fact that the Military Court was informed by Colonel Simelane that the MIR was also required by the Respondent. Hence the said ruling and recommendation by the Military Court Judge.
3.8 His Lordship found that the statement of General Nyanda, in
paragraph 16 of the communication (SBM12A) goes against the grain of both the Military Court's ruling as well as prayer 3 of the order dated the 23rd March 2004.
4.
A formal request to DOD for the additional document had not been made by the Respondent.
5.
The learned Judge further erred and misdirected himself by finding that:
5.1 the Appellants seem to be saying that the Respondent is not
entitled to the MIR as same is not specifically mentioned in the order of the 23rd March 2004.
5.2 the Appellants have not discharged the onus of proof resting
upon them that the MIR is non-existent. Although His Lordship found that no submissions were made in respect of the MIR, there remains ample evidential proof that the MIR is not in existence, as contained in annexures "SBM14B", on page 52, and "SBM15B", on page 58.
6.
The learned Judge further erred and misdirected himself by ordering the Appellants to pay costs.
7. The learned Judge ought to have found that:
7.1 it was crucial and important that the Respondent should
have qualified which report he sought at the outset rather
than somersault after being given the IG Army report dated the 25th June 2001.
7.2 The Respondent would have been given the MIR, subject to
its availability.
7.3 the MIR was non-existent in a similar manner that he found
that the IG report allegedly finalised on the 6th March 2001 was non-existent.
7.4 the ruling and recommendation of the Military Court could
not be equated with prayer 3 of the order dated the 23rd March 2004.
7.5 whilst the Appellants were alleged not to have complied
with the order dated the 23rd March 2004, His Lordship should not have concerned himself with what was not contained in the Court order, being the ruling and recommendation of the Military Court Judge dated the 18th October 2004.
7.6 the Appellants have fully complied with the order dated the
23rd March 2004 and ordered the Military Court proceedings to resume.
TAKE NOTICE FURTHER that the Appellants submit that there is a reasonable prospect that this Court will come to a different conclusion in respect of all these issues.
TAKE NOTICE FURTHER that the Appellants reserve the right to amplify and/or amend this notice should the need arise.
DATED AT PRETORIA ON THIS THE JUNE 2008.
ATE ORNEY
[Attorneys for the loplicants]
Bothongo Heights
8th Floor
167 Andries Street
Private Bag x 91
PRETORIA
Tel: (012) 309 1548/
082 389 4558
Ref: CJ Malan/1235/2004/Z33
To THE REGISTRAR OF THE HIGH COURT
PRETORIA
And
To MSIZA, KRUGER & BEMBE INC
[Attorneys for the Respondent] 793 Merton Street
Arcadia
Tel: (012) 342 7282
Ref: MSIZA /J100/04
c_cc:5-7c:
FORMAL DOCUMENTS 475
FORMAL DOCUMENTS
Notice of Intention to Oppose 2005-05-19
Notice of Set Down 2005-12-28
Notice of Removal 2006-02-10
Notice of Set Down 2006-03-28
Respondent's Concise Heads of Argument 2008-05-30
Respondent's Heads of Argument 2006-06-14
Applicants' Practice Note 2006-06-20
Record of Court Proceedings 2006-06-20
CERTIFICATES 476
REGISTRAR'S CERTIFICATE
I, the undersigned, certify herewith that the aforegoing is a true and correct copy of the original record filed at this office in the matter of:
THE MINISTER OF DEFENCE
DIRECTOR, MILITARY PROSECUTIONS, DEPARTMENT OF DEFENCE
and
GOODMAN MANYANYA PHIRI CASE NO: 26284/05 First Applicant Second Applicant
Respondent
REGISTRAR
(HIGH COURT TRANSVAAL)
• • • •O■
CERTIFICATE
I, the undersigned, certify herewith that the aforegoing is a true and correct transcription of the proceedings in the matter of:
THE MINISTER OF DEFENCE
DIRECTOR, MILITARY PROSECUTIONS, DEPARTMENT OF DEFENCE
and
GOODMAN MANYANYA PHIRI CASE NO: 26284/05 First Applicant Second Applicant
Respondent
 |
| Jacob Zuma (Mr) and some unnamable character |
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Lawyers in Pretoria
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