This post relates to an event that took place in Year 2004 where the redoubtable Simelane's legal mind was successfully sought for against the Devil who had targeted Phiri for destruction.
I hope as reader you succeed to get into the gamut of the Simelane way of thinking and counseling mode as a lawyer. Blog Author, over and above countless other South African and even Zimbabwean clients of Simelane's as a lawyer, was highly blest to enjoy the bask in the human sun called Simelane as Your Lawyer!
THE TRUMPED-UP CHARGES AGAINST GOODMAN MANYANYA PHIRI AND SIMELANE'S DEFENSIVE RESPONSES
THE STATE'S CASE
PLEA PROCEDURE:
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
The first charge relates to 6 February 2001, using insubordinate or insulting language in contravention of Section 17 Military
Disciplinary Code-MDC whereby you would have
told Colonel Johannes Hendrik Beyers Kleynhans that you did not agree with the way he
did his work, and told him ... or said ... or replied to the said Colonel "I am fucking telling you
that", how do you plead?
VENTER, SENIOR MILITARY JUDGE:
The first charge relates to 6 February 2001, using insubordinate or insulting language in contravention of Section 17 Military
Disciplinary Code-MDC whereby you would have
told Colonel Johannes Hendrik Beyers Kleynhans that you did not agree with the way he
did his work, and told him ... or said ... or replied to the said Colonel "I am fucking telling you
that", how do you plead?
GOODMAN MANYANYA PHIRI:
Not guilty.
Not guilty.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
The alternative thereto, on the exact same fact is a charge under Section 46 Military
Disciplinary Code-MDC, how do you plead?
VENTER, SENIOR MILITARY JUDGE:
The alternative thereto, on the exact same fact is a charge under Section 46 Military
Disciplinary Code-MDC, how do you plead?
GOODMAN MANYANYA PHIRI:
Not guilty, Judge.
Not guilty, Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
The 2nd alternative to the first charge, also on the same facts is a
contravention of Section 45(a) Military Disciplinary Code-MDC where such conduct would be riotous
or unseemly, how do you plead?
VENTER, SENIOR MILITARY JUDGE:
The 2nd alternative to the first charge, also on the same facts is a
contravention of Section 45(a) Military Disciplinary Code-MDC where such conduct would be riotous
or unseemly, how do you plead?
GOODMAN MANYANYA PHIRI: Not guilty, Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE: The second charge relates to
criminal .. the common offence ... the common law offence of crimen injuria
that on that same day, 6 February you said to Colonel Johannes Hendrik Beyers Kleynhans that he's a racist and that you
hate racists with the intention to impair his dignity and which words
also, according to the charge sheet did impair his dignity. How do you plead to
this second charge?
VENTER, SENIOR MILITARY JUDGE: The second charge relates to
criminal .. the common offence ... the common law offence of crimen injuria
that on that same day, 6 February you said to Colonel Johannes Hendrik Beyers Kleynhans that he's a racist and that you
hate racists with the intention to impair his dignity and which words
also, according to the charge sheet did impair his dignity. How do you plead to
this second charge?
GOODMAN MANYANYA PHIRI:
Not guilty, Judge.
Not guilty, Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
The alternative thereto, under Section 17 Military Disciplinary Code-MDC is that by saying such words to Colonel Johannes Hendrik Beyers Kleynhans your
conduct would have been threatening or insubordinate, or
insulting. How do
you plead to this first alternative?
VENTER, SENIOR MILITARY JUDGE:
The alternative thereto, under Section 17 Military Disciplinary Code-MDC is that by saying such words to Colonel Johannes Hendrik Beyers Kleynhans your
conduct would have been threatening or insubordinate, or
insulting. How do
you plead to this first alternative?
GOODMAN MANYANYA PHIRI:
.Not guilty, Judge.
.Not guilty, Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
The second alternative is under Section 46 Military Disciplinary Code-MDC that saying such words to Colonel Johannes Hendrik Beyers Kleynhans would
be to the prejudice of military discipline. How do you plead to the second
alternative?
VENTER, SENIOR MILITARY JUDGE:
The second alternative is under Section 46 Military Disciplinary Code-MDC that saying such words to Colonel Johannes Hendrik Beyers Kleynhans would
be to the prejudice of military discipline. How do you plead to the second
alternative?
GOODMAN MANYANYA PHIRI:
Not guilty, Judge.
Not guilty, Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
And there's also a third alternative that by saying to Colonel Johannes Hendrik Beyers Kleynhans that
he was a racist your conduct would, under Section 45 Military Disciplinary Code-MDC amount to unseemly or riotous
behaviour. How do you plead to the third alternative?
VENTER, SENIOR MILITARY JUDGE:
And there's also a third alternative that by saying to Colonel Johannes Hendrik Beyers Kleynhans that
he was a racist your conduct would, under Section 45 Military Disciplinary Code-MDC amount to unseemly or riotous
behaviour. How do you plead to the third alternative?
GOODMAN MANYANYA PHIRI:
Not guilty, Judge.
Not guilty, Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
The third charge relates to also 6 March under ... and the charge is under Section 14(b) Military Disciplinary Code-MDC which is absence without leave whereby
you are charged with having ... without good and sufficient cause ... well
that's 35 the way its framed, that you would have
unlawfully and intentionally or negligently failed to appear at a place of duty
being the Army College for a feedback session on the Inspector General enquiry. How do you plead to this
allegation of absence?
VENTER, SENIOR MILITARY JUDGE:
The third charge relates to also 6 March under ... and the charge is under Section 14(b) Military Disciplinary Code-MDC which is absence without leave whereby
you are charged with having ... without good and sufficient cause ... well
that's 35 the way its framed, that you would have
unlawfully and intentionally or negligently failed to appear at a place of duty
being the Army College for a feedback session on the Inspector General enquiry. How do you plead to this
allegation of absence?
GOODMAN MANYANYA PHIRI:
Judge, if you could spare the court this anguish.. I'm not guilty to all the charges read so far and the several others you are ever going to read.
Judge, if you could spare the court this anguish.. I'm not guilty to all the charges read so far and the several others you are ever going to read.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE: Thank you. Is that in accordance with your instructions, Colonel?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:
-Yeah, the plea is according to my instructions.
-Yeah, the plea is according to my instructions.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you very much. Colonel Phiri. you maybe seated next to your defending counsel.
GOODMAN MANYANYA PHIRI:
Thank you, Judge.
Thank you, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:Could I just have
one moment before I give you the floor? Yes, Colonel Simelane, you have something to share with the court?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge, I was asking for an opportunity to consult with Colonel Phiri on the implications of the verdict, on the request for postponement. [whereby Venter refused me a postponement in order that I as Phiri should petition the High Court for the Inspector General Mashoala's Report intertwined with the allegations against me as Phiri]
one moment before I give you the floor? Yes, Colonel Simelane, you have something to share with the court?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge, I was asking for an opportunity to consult with Colonel Phiri on the implications of the verdict, on the request for postponement. [whereby Venter refused me a postponement in order that I as Phiri should petition the High Court for the Inspector General Mashoala's Report intertwined with the allegations against me as Phiri]
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
Before we ... before I ... (unclear) ... consider that application for a remand. Madam Prosecutor, are you in
a position to call any witnesses at this stage as we stand, or sit down?
Before we ... before I ... (unclear) ... consider that application for a remand. Madam Prosecutor, are you in
a position to call any witnesses at this stage as we stand, or sit down?
Ms PAKENDORF:
obviously have to get here, I suspect that I could have the first witness here
within half an hour due to the type of case it has been ... they have been on
standby.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
Yes.
No, I fully understand and appreciate your position. Very well, the time then
now is 14:16, we shall stand down until shall we say 14:45 which gives you +- half an hour to make the necessary arrangements? Would that suffice for you to
deliberate with your client?
Yes.
No, I fully understand and appreciate your position. Very well, the time then
now is 14:16, we shall stand down until shall we say 14:45 which gives you +- half an hour to make the necessary arrangements? Would that suffice for you to
deliberate with your client?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Not exactly sufficient, we're looking at about 45 minutes to an hour.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
Right, then 45 minutes it will be. At 15:00 the court will reconvene.
Right, then 45 minutes it will be. At 15:00 the court will reconvene.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: As the court pleases.
Ms PAKENDORF:
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
Thank you, Mr Court Orderly. Thank you, Colonel Phiri, you may withdraw. The time now is 14:17; the
tape will be stopped.
Thank you, Mr Court Orderly. Thank you, Colonel Phiri, you may withdraw. The time now is 14:17; the
tape will be stopped.
(Court adjourns)
((Court re-opens))
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
In the matter of State versus Phiri, the time now is 15:10 on 25 FEBRUARY
2004. Colonel Simelane, you have taken instructions from your client. Is that correct?
In the matter of State versus Phiri, the time now is 15:10 on 25 FEBRUARY
2004. Colonel Simelane, you have taken instructions from your client. Is that correct?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
Thank you very much. Madam Prosecutor?
Ms PAKENDORF:
chambers previously I just wish to place on record that the first state
witness, Colonel Eduard Frans Drost [Eddie Drost] will not be called today, but tomorrow morning at
08:00 as agreed upon and that Lieutenant Colonel ... sorry, full Colonel now, Lentsoe, the second prosecution
witness will also be called tomorrow to testify. As the court pleases.
4) MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE: Right. Before then
... before we then proceed to the state where the witnesses are formally called
the procedure makes provision for formal admissions to be made by the defence
should there be any. Can the defence indicate, would you be in a position to
tell the court, are there any formal admissions that you wish to place on
record?
VENTER, SENIOR MILITARY JUDGE: Right. Before then
... before we then proceed to the state where the witnesses are formally called
the procedure makes provision for formal admissions to be made by the defence
should there be any. Can the defence indicate, would you be in a position to
tell the court, are there any formal admissions that you wish to place on
record?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE
SC,MILITARY: Judge, there are no formal admissions
at this stage ... (unclear) ...
SC,MILITARY: Judge, there are no formal admissions
at this stage ... (unclear) ...
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
Thank you. Would the defence... would the prosecution want to make any formal
admissions in favour of the defence?
VENTER, SENIOR MILITARY JUDGE:
Thank you. Would the defence... would the prosecution want to make any formal
admissions in favour of the defence?
Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
Right. Then I will require from the prosecution to deliver an opening address
indicating to the court, you've now mentioned the names of the two first
witnesses to be called, if you can just identify the third witness and give us
a short synopsis of what we could expect from these witnesses.
PROSECUTION COUNSEL
Ms PAKENDORF: As the court pleases, Judge.
VENTER, SENIOR MILITARY JUDGE:
Right. Then I will require from the prosecution to deliver an opening address
indicating to the court, you've now mentioned the names of the two first
witnesses to be called, if you can just identify the third witness and give us
a short synopsis of what we could expect from these witnesses.
Ms PAKENDORF:
OPENING ADDRESS BY THE PROSECUTION
prosecution will call a total of three witnesses to prove the charges contained
as in the charge sheet. The first witness as alluded to in the first charge is
a Colonel Kleynhans, this is the witness who has previously been mentioned to
this court who is presently in Nigeria, he will be available to this court
between 8 and 26 March, and as said he will
testify only to the first charge. Sorry, the first and the second charge. With
regard to the third charge the evidence of Colonel Eduard Frans Drost who will be the first state witness will be led. He
will also give background information on the fourth and fifth charges, and will
give evidence ... direct evidence on the sixth and seventh charges. Colonel Lentsoe the final state witness, the
third state witness who will be called second in line, if I may put it that way, in other words prosecution intends to call Colonel Eduard Frans Drost first, Colonel Lentsoe second and Colonel Johannes Hendrik Beyers Kleynhans third
who will testify to the fourth and fifth charges, and will also support the
first charge, the second and the sixth charge ... sorry, oh, did I mention the
seventh charge, Colonel Eduard Frans Drost will testify on the seventh charge, and Colonel Lentsoe will support on the seventh
charge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
Lentsou? Len...?
VENTER, SENIOR MILITARY JUDGE:
Lentsou? Len...?
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
Thank you. Thanks.
VENTER, SENIOR MILITARY JUDGE:
Thank you. Thanks.
you, Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
Would the defence want to make en opening address?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE
SC,MILITARY: (No reply).
SC,MILITARY: (No reply).
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
Not required of the defence but if you would like to, you
VENTER, SENIOR MILITARY JUDGE:
Not required of the defence but if you would like to, you
may.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE
SC,MILITARY: No, we're not making an opening
address, Judge.
SC,MILITARY: No, we're not making an opening
address, Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
Thank you. Documents admissible by mere production from the side of the state?
VENTER, SENIOR MILITARY JUDGE:
Thank you. Documents admissible by mere production from the side of the state?
Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
Statements by The Accused?
VENTER, SENIOR MILITARY JUDGE:
Statements by The Accused?
Judge.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
Very well, we've reached the stage where the first witnesses would be called by
the prosecution, this matter shall then stand down as per agreement, until
tomorrow morning at 08:00 at which time I understand Colonel Eduard Frans Drost to be the first
witness?
VENTER, SENIOR MILITARY JUDGE:
Very well, we've reached the stage where the first witnesses would be called by
the prosecution, this matter shall then stand down as per agreement, until
tomorrow morning at 08:00 at which time I understand Colonel Eduard Frans Drost to be the first
witness?
so. Thank you, Judge, as the court pleases
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:
Thank you.
VENTER, SENIOR MILITARY JUDGE:
Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE
SC,MILITARY:
. Thank you.
SC,MILITARY:
. Thank you.
MICHAEL ALBERTUS
VENTER, SENIOR MILITARY JUDGE:'l bid you a good evening, the tape is to be stopped: The
VENTER, SENIOR MILITARY JUDGE:'l bid you a good evening, the tape is to be stopped: The
time now is 15:15, The Accused may withdraw. Thank you, Mr Court Orderly
5) (Court adjourns)
((Court re-opens))
6) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: In the matter of the State versus Phiri, the time now is 08:06 on 26 February 2004. The first witness for the prosecution has been called to the stand, Colonel Eduard Frans Drost, is that correct?
CASE FOR THE PROSECUTION
7) WITNESS NUMBER 1 : 76532951 PE : COLONEL : EDUARD FRANS DROST (Hereinafter referred to as "DROST") GIVES EVIDENCE UNDER OATH
8) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you, you may be seated behind the microphone.
STATE-WITNESS COLONEL EDDIE DROST: Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Madam Prosecutor?
EXAMINATION IN CHIEF:
STATE-WITNESS COLONEL EDDIE DROST: I'm currently a Project Officer at Army HQ, at the HR Section.
STATE-WITNESS COLONEL EDDIE DROST: I then was the acting commandant of the South African Army College.
STATE-WITNESS COLONEL EDDIE DROST: Yes, I do.
STATE-WITNESS COLONEL EDDIE DROST: Colonel Phiri was one of the learners that were on course with us at the college, he was one of the Junior Command and Staff Duties students.
STATE-WITNESS COLONEL EDDIE DROST: Okay, there's a Unit Part 1 Order thast stipulates working hours throughout, it says the following that you have to be at work at 07:45. The students actually also have their own time schedule, sometimes they arrive early on course and they have their own things that they do before hours, but official 07:45 up until 16:15 is the official working hours. It is expected of anybody to stay at work and to do his work on a daily basis, if you want leave for some or other activity there's a specific format and a specific procedure which you have to go through. If you are a normal working member you ask your superior and he will then say yes or no, or whatever the case may be. If you are a student on course you will normally either go to the chief instructor and ask him permission to leave, or the course leader if you need to leave early, or you write a letter if you know prior to when you want to leave, let's say you want to leave within two days you can write a formal letter and say "I need to be excused" [on] that specific day.
STATE-WITNESS COLONEL EDDIE DROST: For sure, for sure.
STATE-WITNESS COLONEL EDDIE DROST: Junior Command and Staff Duties course.
STATE-WITNESS COLONEL EDDIE DROST: Positively, that is their own internal student arrangement that they make, and which they conform to.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, may... can I just object ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: ... I just want to indicate to ... (unclear objection)
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: ... Judge, that which we would like to place on record (1) is that prosecution counsel must not, in our submission, no objection, lead the witness. (2) The witness must testify and .in relation to the charges for which he.......has been identified to be a witness: It must be clear as to which charges we are dealing with in his evidence and I would presume an indication would suffice from counsel to say, the member has been charged of this and you are the witness in that regard, could you tell the court what's all about insofar as he has contravened this. The general statements- and terms on the JCSD and where the college is located perhaps counsel would have, in his (her) opening statement briefed the court about that, you know, the case relates to events that took place at such a place and you know and this is a college, but we expect from the side of defence that when a witness is called and is on record that he's going to testify on certain charges that he testified on that, that is our objection, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: You don't need to answer.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: You don't need to answer.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you, I won't give you an opportunity. In respect of leading questions whereby you do say to the witness I assume, or I presume or is that then correct may then lead to a leading statement to a witness, quite correct. Secondly, the second aspect is denied there is no such instance as that there is an obligation upon the prosecutor to only lead her or his witnesses in respect of certain charges, specifically the first witness in the case, and specifically at the start of his evidence certain background information may be extracted from such a witness to place the court in a position to understand the proceedings, or the events rather, against a certain background, so I will allow that under the circumstances. Please proceed.
PROSECUTION COUNSEL Ms PAKENDORF: Thank you, Judge, as the court pleases, I was in any event going to move on to the incident at hand before this court today. Colonel, it is alleged that on 7 March 2001 there was an incident where you were involved and where The Accused was involved, can you tell the court about that incident please?
STATE-WITNESS COLONEL EDDIE DROST: This incident on 7 March took place at more or less plus 12:00/12:45 where I had Colonel Phiri on office orders to give him feedback and to inform him with regard to what was happening to an incident between himself and Colonel Johannes Hendrik Beyers Kleynhans so the idea was to give him feedback and to say to him "this is where we stand with regard to the system, and the whole incident that happened and this is what I am going to do."
STATE-WITNESS COLONEL EDDIE DROST: Okay. At that specific time I had a double-hat appointment, I was the acting commandant and I was also the chief instructor at the Senior Command and Staff Duties branch, so these orders took place in my office at the chief instructor's office of the senior command and staff duties branch and the person who joined me there was Colonel Raymond Lentsoe who was the course Leader of the Junior Command and Staff Duties branch so he brought Colonel Phiri in on orders and ... I do not know, do you want me to carry on with the whole incident?
STATE-WITNESS COLONEL EDDIE DROST: Okay.
STATE-WITNESS COLONEL EDDIE DROST: Okay. So at 12:45 Colonel Phiri finally pitched up and then we decided now is the order time. So Colonel Phiri was marching in the orders, he marched in, he halted, made a left-turn and immediately he came to a stop... he immediately went and stood at ease. I then said to him this is a formal office bearing so he had to stand at attention.
STATE-WITNESS COLONEL EDDIE DROST: The usual drills is a guy marches in neatly, he makes a left-turn and he stands there and he salutes, in his case as en officer he salutes and then he stands at attention and then the whole office bearing is finalised, he salutes, he makes a left-turn and he marches out of the office once again.
STATE-WITNESS COLONEL EDDIE DROST: No, there's no other positions.
STATE-WITNESS COLONEL EDDIE DROST: Okay. Then after I reprimanded him to stand at attention he physically showed his displeasure by staying at attention but looking up in the air, rolling his eyes and I got the idea that he was highly agitated with what was happening at that specific ... or in that office.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The court takes ... (unclear) ... what standing at attention means in the military. Thank you, you may proceed.
STATE-WITNESS COLONEL EDDIE DROST: Okay. Righto, I then asked him where he was on the 6th and on the 7th because he was supposed to be at work and I was supposed to give him feedback already on the 6th and on the morning of the 7th as this was already at 12:45. He then refused to answer me initially, and then again I asked him, "Colonel, where were you on 6 March", the next moment he said to me, "go ask my lawyer." I said "Colonel, where were you on 7 March, the morning", "go ask my lawyer", so I was a bit taken aback by these comments that he made and I saw that we were going nowhere with regard to this question, so I then gave him a formal order to write me a statement, or a paper telling me where he was and he had to hand that paper in at 08:00 the next morning on the 8th. I then proceeded by informing him that I have received both Colonel Johannes Hendrik Beyers Kleynhans' incident report which I also provided to him
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Sorry, could you just repeat that, you ..?
STATE-WITNESS COLONEL EDDIE DROST: I have received Colonel Johannes Hendrik Beyers Kleynhans' incident report ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes?
STATE-WITNESS COLONEL EDDIE DROST: ... which I went through and I also received his incident report after responding to Colonel Johannes Hendrik Beyers Kleynhans' incident report, and that I've read through it and that I was then going to convene a commander's 'investigation because I could not make a decision on who is right and who is wrong, and that he then had to report to Colonel David Maswanganyi at 13:30 to do the commander's investigation that day. I then asked him to read through the paper, the incident report that I had, or the orders report that I had in front of me and to sign it, he then flatly refused to sign it and in the word of "I won't, I won't". I asked him twice to read through the report and confirm it, and he said he would not do so. Then I asked him and I said, "Please, Colonel, you are a Colonel I address you by rank i think it's proper for you to address me by my rank as well" and then the next moment there was a ... like the marine corps guys go, and he said "Yes, Colonel" and he was shouting at me whenever I asked him "Yes, Colonel" or whatever the case may be.
STATE-WITNESS COLONEL EDDIE DROST: [Jeepers], I was strictly taken aback, I could not believe what was happening here in front of me. I thought it was totally out of line for a senior officer to react in that specific way. I then asked him ... or I then excused him as well from my office. The next moment he asked me what happened ... or if I received the document, or the redress of wrongs [directed to the State President] that he forwarded to me against [Army Lieutenant General Gilbert Ramano-appointed Inspector General Enoch Musiseng Mashoala]. I said to him, "Colonel, no, this is not the time to discuss that now, this is formal office orders we can discuss that later", he did not want to leave the office, I then again said to him "Colonel, you are excused", he did not leave the office. The third time I said to him, -Colonel, you are excused" finally he made a left-turn, he Marched off to the door, suddenly he stopped, he halted, he saluted towards the door and he looked to me and he said, "Colonel, salute me, Colonel, salute me. Oh! You don't want to salute me" and shoops down the corridor he went. Stood there in total amazement, and when he was down the corridor I said to Raymond Lentsoe, "just confirm, I saluted and he was off", and that is what happened on that specific day.
STATE-WITNESS COLONEL EDDIE DROST: Well, he was totally un-disciplined to my opinion, and he was actually ... well, I got the idea, and I felt that he was challenging authority from the minute he stepped into that office, and that only ... or that feeling was aggravated as we carried on.
STATE-WITNESS COLONEL EDDIE DROST: Okay, the Inspector General feedback session took place on the 6th at 15:00, all the Directing Staff’s and the chief instructor, and the course leader as well as all the students were supposed to be there, and I was also attending that specific feedback session.
STATE-WITNESS COLONEL EDDIE DROST: Okay. ..Okay, it's actually a long story;, there was a lot of call it political bickering between the students, and those type of things, there were allegations made that the Mufassa, who is the course chairman made political speeches and all those type of activities as well. And then there was a ... I think it was a Swedish visit where they once again said that the Mufassa made political speeches, and finally it was with regard to the final [activities] of the Mobile Phase where the Mufassa once again made certain statements which, according to some of the people, were not in line. I was informed about this by Lieutenant Colonel Lentsoe and I then said "well, I'm not going to try and investigate this whole matter" so what I did is I phoned the then Training Formation Commander, [Brigadier Barend /Deon Steyn d.o.b. 28/03/51] and I said to him "please come and investigate the allegations that are made here, I think it is out of the college's authority to do that specifically and we need ... what is "onafhanklike?"
STATE-WITNESS COLONEL EDDIE DROST: ... independent opinion about this whole thing. What happened then was the Inspector General was appointed to do the investigation. They did the investigation, they finalised the investigation and they were then ordered by, I assume, Chief of the Army [Lieutenant General Gilbert Lebeko Ramano d.o.b. o7/07/39] to give feedback to the students with regard to the findings of that board, and that happened on the 6th at 15:00.
STATE-WITNESS COLONEL EDDIE DROST: No, he was not present.
STATE-WITNESS COLONEL EDDIE DROST: Yeah, I think he was required to be present.
STATE-WITNESS COLONEL EDDIE DROST: No, he
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right, to ascertain, were you present at that session yourself?
STATE-WITNESS COLONEL EDDIE DROST: Yes, I was present there, yeah.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
STATE-WITNESS COLONEL EDDIE DROST: He was definitely required to be there, yeah. All the students had to be there.
STATE-WITNESS COLONEL EDDIE DROST: Well, I later received his document where he stated the reason why he was not there. Now if I can ...
STATE-WITNESS COLONEL EDDIE DROST: That's positively, yeah.
STATE-WITNESS COLONEL EDDIE DROST:
STATE-WITNESS COLONEL EDDIE DROST: And in that document he said that, if I can remember correctly, that he had an arrangement with Colonel Lentsoe for 15:00 that afternoon, but that he was writing some or other document and that he overstepped the time, and that he then directly went to Chief of the Army to hand his side, or his response to certain documents as well.
10) STATE-WITNESS COLONEL EDDIE DROST: I had to have it by 08:00 on 8 March, I did not receive it at the 8th, I received it somewhere through the day. I can't exactly remember the time that I received it, but I did not receive it 08:00 that morning.
STATE-WITNESS COLONEL EDDIE DROST: I think what is important is just to understand the context as well of the whole thing. The whole story started off on 2 March where I actually had Colonel Phiri on office orders after receiving the incident report of Colonel Johannes Hendrik Beyers Kleynhans. When I got him on office orders I said to him, "here is the incident report and the statement written by Colonel Johannes Hendrik Beyers Kleynhans which is vital because it accuses you of certain things."
STATE-WITNESS COLONEL EDDIE DROST: So to give him a fair chance to react to that as well, I asked hiM "go through this document and then on Monday 08:00 provide me with your side of the story as well." Once again, on Monday 08:00 he did not provide me with the document, and I also received the document later that day only. Then I started, and I asked that he come on office orders on the 6th which I think it was more or less 12:00 where I asked...him... that he appears before me on office orders so that I can inform him of what is going to happen after the commander's investicatioft he was not available. Then I said to Colonel Lentsoe "you've got leeway through the day, go get him and whenever he's available let him come" and I never saw him on the 6th. On the 7th I had a communication period with my students, my own senior students that morning, and directly thereafter I once again phoned and I said, "is Cclcnel Phiri available" and he once more was not available. The first time that I saw Colonel Phiri...
11) PROSECUTION COUNSEL Ms PAKENDORF: Sorry. When you phoned you spoke to?
STATE-WITNESS COLONEL EDDIE DROST: I spoke to ... I think it was Colonel Le-tsoe. The first time that [Phiri] was available for office orders was more or less ... I think it was 12:45 that I saw him, but more or less in that vicinity; so this thing actually dragged on from the previous Friday up until the Wednesday.
12) STATE-WITNESS COLONEL EDDIE DROST: Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Defence?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge, as indicated yesterday the defence will reserve cross-examination so that at the appropriate time when certain documents are available such investigations ... such cross-examination will be done. I can indicate to the court that instructions have been given and that are being worked on by the relevant attorneys to work towards the High Court motion.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: But I confirm, as between the postponement yesterday afternoon at early afternoon, before I think 15:00 still and this morning has any such an application to the High Court been lodged?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: The ... Judge, we're in the courses of taking instructions, we ... there were consultations that took place yesterday between the member and a certain firm of attorneys, I've got the business card here, it's Ramotwala, ... (unclear) ... Incorporated and ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Is there a telephone number?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: The telephone number is available, It's +2712for Pretoria, 3234824.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: And the attorney of record?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: fVlafora Daniel Ramotwala.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Himself?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, it is Mr Ramotwala himself ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Excellent. Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, the ... i also had consultations on ... as instructed by client with the Legal Resources Centre.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Mm.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: And arising from that consultations the open democracy of South Africa was brought into play(?) and as ... after adjournments today I will get in contact with the lawyers of the Open Democracy Centre and Ramotwala to streamline those kind 'of instructions to get the documents which are necessary for this case, which include the investigating report which the court has heard about, The Accused's report.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Madam Prosecutor?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Any remarks to that?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge, they would be very short remarks. The remarks in this line that defence ... defence counsel conduct their own case and not the prosecution's case, that the defence in the interests of The Accused member and with regard ... with ... in consideration also to The Accused member's constitutional rights him being afforded the relevant opportunity to prepare his defence that is in accordance with those rights and that would be his cross-examination is reserved so that the ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Just one moment, for the helicopter to pass.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes. The essence of the response, Judge, is the constitutional rights of the defence, The Accused to prepare his defence and to have all the documents he wants, he requires to do that. And that the cross-examination is reserved in entirety at in the interest of the member and in the discretion of defence counsel as to how it will be conducted. It is not for the prosecution counsel to dictate how the defence must conduct its case. This is our submission, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you very much. The count will stand down to consider the application. The timeinow is 08:33, 10:30, of tea we will make known our finding whether a postponement be oranteO to allow the High Court application to proceed before cross-examination should take place, or whether cross-examination shall take place irrespective of whether there is an application to the High Court. Colonel Eduard Frans Drost, you may stand down, if you could be available then at 10:30. Thank you very much.
STATE-WITNESS COLONEL EDDIE DROST:Will be, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you, Kolonel. Kolonel? Kaptein? The time then
is 08:34 and the tape is to be stopped. ((Court closes) to consider application) (End of tape 3) (Transcription continues on tape 4) ((Court re-opens)) FINDING
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Regarding the instruction that Colonel Phiri supplied to his defence counsel not to continue with cross-examination in this matter pending an application to the High Court, or an order to release certain documentation that they would require for cross-examination of this witness, and the following I find of relevance. In the matter of the S v Strowitzki, 1995 (1), SALR 414, a Namibian case the following was said and I quote:
13) "It is clear that the court leaned heavily against allowing inter loquitra appeal in criminal cases ..." as long ago as 1917, the reason for this was given by ,Tztclge Gregorowski in the matter McComb v ARM Johannesburg and the Attorney General, 1917, Transvaal Division TPD 717 at page 718 as follows, and I quote: "The idea of a trial is that it should as much as possible con ... I repeat, the idea of a trial is that it should be as much as possible be continuous, and that it should not be stopped. if this kind of procedure were to be allowed it would mean that a trial maybecome protracted and make extend over a number of months, the magistrate would sit on one day and hear part of the evidence of a witness, then the hearing would have to be postponed till the opinion of the Supreme Court could be taken perhaps a month or two later, thereafter the trial wouldagain be continued and after some months... I repat after some months and immediately it is resumed objection May again be raised in connection with some evidence with an application again to the Supreme Court and again back to the magistrate. I think that would produce an intolerable condition of things. I do not say the court May never interfere in the course of a trial before the magistrate, there maybe misconduct on the part of the magistrate or something of that kind, but when a case comes before a magistrate I think he must use his discretion and give his decision." That then what was said by Judge Gregorowski. Judge Hannah who presided in the matter of S v Strovvitzki then continued and says: "This approach has been reiterated time and again over the years, for example, in the matter of Wahlhaus and Others v the Additional Magistrate Johannesburg and Another, 1959 (3), SALR 113, an Appellate Division case where Ogilby Thompson, Judge Appellate at the time said at page 119, paragraph (e): "The practical effect of entertaining an appellant's partition would be to bring the magistrate's decision under appeal at the present un-concluded stage of the criminal proceedings against them in the magistrate's court. No statutory provision exists directing sanctioning such a course, not even if the preliminary points decided against The Accused by a magistrate be fundamental to The Accused's guilt will a superior court order ordinarily interfere whether by way of appeal or by way of review before a conviction has taken place in the inferior court."He then closes the quote from the F,ralhaL case and continues then at 120(b) the learned judge of appeal went on to approve the following statement in Gardner and LCInSC-10111n, Sixth Edition, (1) at page 715. I quote: "While a superior court having jurisdiction in review or appeal will be slow to exercise any power, whether by a mandaus or otherv.ise upon the unterminated course of m proceeding§ in a court below it certainly haS the power to do so, and will dc so ... I repeat, and will do so in rare cases where grave injustice.. might. otherwise result or where justice might not by any other means be attained. In general, however. it will hesitate to interfere especially having regards to the effect of. such a. procedure upon the continuity of proceedings in the court below it, and to the fact that redress by means of review or appeal will ordinarily be available." That then in respect of what I wish to point out of the case of Strowitzki. I move on, and I wish to refer to the matter of the S v Attorney General of the Western Cape and S v the Regional Magistrate, Wynberg not ... I repeat the reference is incorrect, not the state, it's S v Attorney General of the Western Cape and S v the Regional Magistrate, Wynbeg and Another, 1999 (2) SALR 13, a Cape Provincial Division case. I quote: "This cases raises the question whether given the circumstances of the matter a review is competent in respect of the aforementioned inter loquitra order made the magistrate, or whether it should await the final conclusion of the case. The leading case in this respect is Wo/haus & Others with the additional Magistrate Johannesburg and Another, 1959 (3) SALR 113, an Appellate Division case where the Appellate Division lays down the general rule that ordinarily there should not be inter loquitra appeals and reviews before finalisation of the criminal trial. In the course of his judgement Ogilby Thompson, Judge Appellate as he then was, said the following at page 119, paragraphs (d) to 120 (a) and I quote: "If an appellant's contends the magistrate erred in dismissing the exception and objection to the charge his error was that in the performance of his statutory functions he gave a wrong decision, the normal remedy against a wrong decision of that kind is to appeal after conviction. The practical effect of entertaining the appellant's partition would bring to the magistrate's decision under appeal at the present un-concluded stage of the criminal proceedings against him in the magistrate's court. No statutory provision exists directing sanctioning such a course nor, even if the preliminary point decided against The Accused by a magistrate be fundamental to The Accused's guilt will a superior court ordinarily interfere, whether by way of appeal cr by way of review before a conviction has taken place in the inferior court." I also wish to draw your attention to the matter of Lombard and another Esteerhuizen and Another 1993 (2) SALR 566, a Witwatersrand Decision for your discussions of the same principle. In this matter of State versus Phiri the decision by Colonel P R Venter stands, after he had listened to the evidence specifically brought before the court by way of The Accused himself testifying, and he has heard arguments about the required information requested by the defence. I do not intend re-deciding that issue, what I do find of importance in the decision of Colonel P R Venter is that The Accused seems to be well positioned to challenger the allegations in the charge sheet by virtue of his personal knowledge of the events at the army college. He further has the option of calling witnesses to substantiate his version of the events, he has the right to cross-examine state witnesses and put his version to them. I again considered the nature of the charges, that is specifically that they are not technical in nature that would typically require documentation to be placed before the court in the form of either expert witness or in the form of official documentation of the National Defence Force to prove or disprove the actual commission of the offence, such as orders that were not committed, fraud that maybeen committed in respect of subsistence in travelling, or leave, alteration of leave documentation, or official authority for absence from work, et cetera. Rather the conduct complained of are of simple occurrences and the question in the instance would be did they occur, or not. As I understand from the defence the documentation that is required is not so much to contest the octus reaos(?) in any of the instances complained of by the state but would rather be utilised to show the victimisation. Given the circumstances described by The Accused in his evidence before Colonel P R Venter, it appears that he should have plenty of witnesses whom he can call to substantiate such an allegation and that therefore he cou:d use such witnesses to the same effect that he intends to put the documents to use for. I fail to see why this court should be held up so a High Court application can be made to obtain documents that had already been ruled are not required for the defence's defence. Furthermore, it woucl appear to me that The Accused's prospect of success in such an application, given the authority I referred to above, is extremely thin. I therefore again will not postpone the matter pending a High Court application such as envisaged by the defence. Cross-examination is available to The Accused. Colonel Phiri, should you not make use of this opportunity to cross-examine the witness the possibility exists that the tender ... that the evidence tendered by this witness May in it's un-contested form constitute prima facie evidence of the elements he testified about, and May eventually be accepted as sufficient proof, note that in the case of S v van As, 1991 (2), SALR 74, a Witwatersrand Decision, the court had the following to say about failing to cross-examine inter cilia:
"It is a cornerstone of the administration of justice in South Africa and elsewhere that counsel should put his case to the witnesses for the other side, where, as in the present case The Accused's version has given in his evidence is that the particular state witness has committed perjury and that there was a fabrication of evidence by such witness, it follows from the decided cases that in appropriate case an inference must be drawn against The Accused where his counsel has not put the relevant question to the witness concerned. The inference is inevitable that The Accused when the cross-examination of the state witness in question was taking place, did not dispute the particular point and that he charged his version thereafter when testifying." This court will not stand down to a ow time for the defence to first approach the High Court in the applicaticn envisaged by the defence, and that this shall continue. Colonel Simelane, if you now wish for this matter to stand down for 15 minutes so that you may take fresh instructions from Colonel Phiri, you may do so. Do you so wish to take fresh instructions?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: No, my ... I have instructions already, they are new instructions.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Right, then I once again afford the defence the opportunity to cross-examine the first state witness.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Judge my instructions still stand that we reserve the cross-examination of this witness Until such time that the relevant records are obtained. In view of the court's judgement now on this issue. and ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes? You may continue.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: In view of the judgement as I've heard it, it would appear that there is a need for an urgent application to the High-Court, and we will need the assistance of this court in getting the transcripts because the for the urgency ... to establish the urgency of this matter we should be able to relate to the present decision that the matter of this application we want to bring be on an urgent basis. It is not my intention to address the court on the verdict, of course yes, ... (unclear) not on appeal. But it becomes apparent to me, because the question of the nature of the application to be brought whether it would be urgent, or in the normal course the nature thereof it's become apparent that this application will have to be on an urgent basis and the urgency will be established by the record of proceedings of today. And I'm asking the assistance of the court on the basis that to experience and through the certain administrative orders I'm aware of from the Directorate of Judicial Reviews here at the SANDF that the records before the conclusion of the trial would not be made available, and if it ... unless it's required by the court or it's at the court's instruction, if it's required by the member it must be the member's expense. It is that point of view that I'm ... in fact I'm requesting the court's assistance in fact to get this transcript, in fact the whole transcript from the 27th of last month when Colonel Colby recused herself and the recent proceedings that we have had, these transcripts will be useful to us, to the member, to The Accused in his pre... in his application to the High Court. Of course more importantly the pronouncement of today by the judge that they would appear they ... (unclear) ... they will address the issues of urgency. Yeah, there are distinctions, I'm aware of the ... (unclear) ... which the court has just mentioned and even that T'T/C77::11,5' case that the court has mentioned we were aware that the ... but what the judges were saying there, which the court mentioned in terms of you know it's not just a point which one can deal with on the question of there's a point ... (unclear) ... is appealing ... (unclear) ... In this case were dealing with a case of grave injustice. This case of this member has moved to the ... particularly of grave injustice, it's not a matter that could be dealt with by even appeal or review for more tnan one reason. From the evidence as we understood it from the witness, he ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: May I? You said you did riot want to discuss the decision and ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge,.thanks
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: ... but you are actually going to 0: that now I see.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Okay, I'll rephrase. I'll rephrase. I can only ask the court's assistance for the records I've mentioned since the Colonel Colby's court to the present court, if these records can be obtained at the direction of the court, and they will assist us as part of the instructions in this urgent application ... (unclear)
14) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: There is provision made for records to be transcribed and made available to a person requiring them for whatever purpose at the prescribed rate in the Military Disciplinary Code-MDC, so if ... certainly, you require them for this application I see no reason why ... of why you cannot make use of that procedure. If I'm not mistaken the request must be made to the GEOIC of Army Law Enforcement Satellite Office, Thaba Tshwane who shall then issue the necessary instructions in that regard. I certainly do not require them for myself, and seeing it ... as there is another procedure available whereby you can request such, I feel it unnecessary to make that an order of the court.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: You know, it's granted, really, Judge, we are asking the kind of direction from the court to obviate the question of cost, is ... the court is aware the member is burdened with heavy costs and the nature of the application that he's bringing and we thought that if the court was to meet the member halfway, those costs would be obviated.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right, ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: That is the nature of the request. really.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I fully appreciate your request. I must however repeat that the decision is not mine to make. The instruction received from the adjutant general was clear that matters to be transcribed would. in the normal course of events, ... normal course of events I repeat, the plea ... the findings of guilty he did however allow for other matters also to be transcribed, and without saying that this is such an instance it could be that there is ... that he would see it to such a request from yourself, but as I pointed out the GEOIC of the Army Law Enforcement Satellite Office would be the channel for you to approach in that retard. I certainly do not require it for my own purposes, or for finding in this matter ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Which now, if I understand was sr.nplj/ a request from your side for the transcription of the proceedings u; to now?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:. Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes. We ... I presume we're z:ven no choice but the member will have to proceed at her (his) own cost to getiiimeansoriptions. The ... we will, of course, the court is aware now in terrhs of my instructions, reserve this cross-examination and everything being equal in the nature of if we ... assuming we'll be able to go in the nature of an urgent order we should be able to have these documents at the close of the state's case. And we will ask then these witnesses to be recalled because it is important ... it's not a quiz where we're saying we're not using ... I'm referring in particular to the authority of the court quoted in the last case mentioned, this van somebody, 1991 (2) ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: S v van As? Yeah, this van As case, we the present member's case is distinguishable from the van As case where the member does not use the 10 opportunity to cross-examine.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: I beg your pardon, in the present case? Where the member in van As case where the member ...I'm sorry if I'm not audible, in ... where the member does not use the opportunity to cross-examine. I say, Judge, this case is distinguishable in the sense that the member wants to cross-examine this witness and he only reserved the right he has to cross-examine in order to cross-examine this member at a late:. stage. And at a later stage when presumably these documents ',,ill be available and a proper cross-examination will be conducted.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Let me make the court's position c ear without raking a ruling whether you will be allowed to later cross-examine. I wish to reiterate that the opportunity now exists, and in the normal course of events this is the- where the version for the defence will be placed to the state witness, and the pcssibility exists, either way, that the witness maybe recalled for late' "..;ross-examination at a later stage, it's not impossible, but the possibility also exists that the curt May refuse such an application to recall the witness. [I: you, Colone Phiri, understand that?
GOODMAN MANYANYA PHIRI: YeS, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:. Thanks. I have no ... nothing furtne7 to useful to add,- Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: No cross-examination, no re-e-amination. Any questions that you wish to .pose to the Colonel? ... (unclear) ... Any questions
QUESTIONS BY THE COURT:
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could I, just for my own purposes, return to the incident where Colonel Phiri appeared before you on office orders, where you testified that firstly he had to give you feedback formally by the next morning at 08:00 about his whereabouts on the previous instances, and then you went on to testify about an OC's enquiry, if I heard you correctly, that had to be conducted.
STATE-WITNESS COLONEL EDDIE DROST: Yeah.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could you just explain that to me?
15) STATE-WITNESS COLONEL EDDIE DROST: Surely, Judge. What actually happened, and that is why I wanted to put it into perspective from the 2nd as well. I received an incident from Colonel Johannes Hendrik Beyers Kleynhans where he accused Colonel Phiri of being out of line and not adhering to certain standards, et cetera. So what happened then is after reading through that incident report I got the Colonel on office bearing the Friday to spe... to give to him the copy of that specific incident so that he could read, and so that he could also state his case in that specific regard. That document where he could react to the incident of Colonel Kleynhens had to be in on the Monday morning 08:00, with me. After I received both documents, as I stated I did not receive it 08:00 that morning, but I received it later in the day, after I received both ... or looked at both the documents and also Colonel Phiri's I looked at the documents and I said to myself as well, and I ... to be fair I think this has to go the way of a commander's investigation, and that is where the commander's investigation came from. I then decided that the whole case would be investigated by a commander's investigation to determine vihat route we have to go further forward, and then I got him on office tearing, or I wanted to get him on office bearing the 6th to tell him that I was going to convene tn:s commander's investigation. He was then not available and only on the 7 could I finally formally inform him that I'm acing to comene a commander's investigation with regards to this whoie issue.
16) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: "This v,hole issue , meaning the noident between hire and Colonel Johannes Hendrik Beyers Kleynhans?
STATE-WITNESS COLONEL EDDIE DROST: And ... that's right, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Was such an investigation conducted?
STATE-WITNESS COLONEL EDDIE DROST: There yes an investigation conducted then. yes, Sir-
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: It now becomes clear, if I understand you correctly that the OC's investigation ordered by yourself ... STATE-WITNESS COLONEL EDDIE DROST: Yeah. MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: ... is separate and of a totally different topic than the Army Inpector General by the name of Mr Enock Muiseng Mashoala investigation? STATE-WITNESS COLONEL EDDIE DROST: That's so, Judge. MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Correct. Questions arising? Madam Prosecutor? PROSECUTION COUNSEL Ms PAKENDORF: None, Judge, as the court pleases. MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Defence? BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, Judge? MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Questions arising from the questions by the court? QUESTIONS ARISING FROM QUESTIONS BY THE COURT: BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Well, my only question there would be was it from that in... without cross-examining, just questions by the court that the commander's investigation was it based upon ... (unclear) ... the member was charged? STATE-WITNESS COLONEL EDDIE DROST: That is so, yeah. BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Thank you. MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE:. Colonel, thank you for your evidence. You're excused and you may stand down, you may withdraw. STATE-WITNESS COLONEL EDDIE DROST: Thank you, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Madam Prosecutor?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Good morning, Colonel.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Good morning, Sir.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you, you maybe seated behind the microphone.
WITNESS NUMBER 2 : 94725678PE : LIEUTENANT COLONEL ADLHOLANG RAYMOND LENTSOE (Hereinafter referred to as "LENTSOE'') GIVES EVIDENCE UNDER OATH
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Madam Prosecutor?
EXAMINATION IN CHIEF:
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Is it now?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: I'm currently employed at the South African Army Infantry Formation HQ.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: At South African Army College, at the junior command and staff branch.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: At some ... during that ... the period in question I was the course leader of the then basic course, and at some stage I was the acting chief instructor in the absenCe of the chief instructor who was then Colonel Johannes Hendrik Beyers Kleynhans. On completion of that I was then appointed as the senior DS.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Is that now Colonel Phiri?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Yebo, I do.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Yes
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Colonel Phiri was part of the course on which I was appointed as the course leader which started somewhere in 2000 and vvas completed, if I'm not mistaken. on 7 March 2001.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Junior Command and Staff Duties course, theory portion, or the theory phase of it.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: That would be ... what date?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Earlier than that there was a- incident. ,of_ .racial disharmony in the course which. in my opinion, splitted
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: An incident of?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Racial disharmony.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Okay, thank you.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Which in my opinion split the course in two, now the "two" meaning whites and blacks, that during the absence of the then chief instructor, Colonel Johannes Hendrik Beyers Kleynhans. On his return, I'm not quite sure when but it was towards the last week of the then preceding week I informed him of what transpired during his absence and what my actions were, that I have consulted with the then acting commandant of the college, Colonel Eddie Drost then, and that there was an investigation underway. [Colonel Kleynhans] then, within his mandate, decided to address the course, I believe it will be that morning of the [6th February 2001] after which he opened no stage for questions and so on, and he left. Before I could leave the class because I was then the course leader, I informed the military students of what will then happen in that week in terms of confirmation of the weekly programme and so on, after which Colonel Phiri indicated to me that he would like to have an appointment with the chief instructor [Colonel Kleynhans], then I left to make the appointment for him, to prepare the file to formalise their appointment in terms of being completing the necessary documentation for office orders. In his request he indicated that he would appreciate it if the course chairperson called Mufassa that was a name like a beagle, but ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: sorry, I didn't quite hear, the course chaplain?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: The course chairperson.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Oh! Chairperson?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Course committee chairperson.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Who says it ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Mufassa. Mufassa is just like a beagle in the senior staff. He is ... we're not referring to him as "chairperson" but as "r.lufassa."
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: By the name of Major Matli which I indicated to Colonel Johannes Hendrik Beyers Kleynhans that the request of Colonel Phiri is to see you. nct quite sure of the contents, but he would appreciate it if the course chairperson. Mufassa, can be present which he consented to. Then I went back to the lecture. room and informed Colonel Phiri that it's okay, you can then come and see the chief instructor. Then ...
2) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Sorry, could I just have the .... is course, students' chairperson, Major ... Lieutenant ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Matti.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Please refer to the people by their ranks and names if you don't mind.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: I will do so, Your Honour.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: He was at that time Major Matli there.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Then myself, Colonel Phiri and Major Matli we left the classroom to the above ... or the first floor where I went to my office to fetch the file in which I indicated that number, rank, name being Lieutenant Colonel Goodman Manyanya Phiri, and appointment with the chief instructor Colonel Johannes Hendrik Beyers Kleynhans. I didn't write anything where there's a reason ... a space for reason for their appointment, and I handed that file in at the chief instructor, then he said "no, okay, let the two gentlemen then come in", I went back, opened the door and get them in. I saluted and I stood behind them, and he offered them the chairs then they sat down. And Colonel Johannes Hendrik Beyers Kleynhans indicated to Colonel Phiri that he's of .,. or he's made to understand that Colonel Phiri has something that he wants to discuss with him being the chief instructor and the floor was open, and Colonel Phiri indicated to Colonel Johannes Hendrik Beyers Kleynhans that he does ... he didn't like the manner in which he addressed them as military students of that particular course, and more so for not allowing them to put any questions in terms of what he said to them, and so on. Then at some stage Cc!onel Kleynhans said to Colonel Phiri he must not tell him how to do his work, and from that point ... I don't have the right word, but the conversation got out of hand. At some stage Color el Phiri stood up from his chair, withdrew his beret and leaned on the table and said to Colonel Johannes Hendrik Beyers Kleynhans fucking telling you, you are a racist and then ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: In the manner that you've just described?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Pardon, Sir?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: in the manner the-. you've now demonstrated to the court? Lent In the manner .which ... (unclear) ... and Colonel Phiri now ... (unclear) ... on the table. I was a few steps to the rear ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Right. For record purposes it's indicated that the witness demonstrated by standing up, removing .:..'or..-holding, a beret in his left hand, leaning with the hand on a desk and .
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: That's right, Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: ... using his right hand ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Colonel Johannes Hendrik Beyers Kleynhans was sitting on the other side.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: ... extending the four digits of the right-hand, excluding the thumb forward in a pointing gesture, leaning forward whilst expressing the words "...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: "I am fucking telling you that you are a racist."
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Is that a fair reflection of \vhat the witness demonstrated? Madam Prosecutor?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Colonel Simelane, you satisfied with that description of the demonstration?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: I don't understand the question.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The witness now demonstrated to the court what he observed, the court then recorded the demonstration because the recording equipment cannot, of course, record the demonstration, it can only record verbal explanations. Are you satisfied that how the court recorded verbally what the witnesses demonstrated is a fair reflection of what the witness demonstrated?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, I don't see the record, but I've seen him demonstrate, I can say I've seen him tes... but I don't see ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes, you've seen him demonstrate, you've heard me place on record what I also saw the witness demonstrated?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes, what you're telling me you've placed on record, not what I say you placed on record.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: No, ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: That
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: we'l, the record. is what is beinz recorded on cassette not what I'm writing, this is my own persona! notes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Okay. Judge.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Are you satisfied that what I have placed on tape here?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY:-- What is it that you placed on tape here? My instruction is that you repeat that to say vihat you put on tape.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I've out on tape what I coserved the witness demonstrated, that is to say that he leant forward, he he his beret in his hand, - he pointed his right hand with fingers extended. Is that a fair reflection of what the witness demonstrated?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: If it's what you're telling me that is what you have recorded it's what I've seen as well.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you. Thank you very much. Just one moment 'before you continue. Yes? Please continue.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: The argument of you can't address me that way and so on ensued, during which at some stage Colonel Johannes Hendrik Beyers Kleynhans said to Colonel Phiri "you are excused from my office", and Colonel Phiri left the office. Major Matli was still seated, I was still standing closer to the door and I opened the door. Then Colonel Johannes Hendrik Beyers Kleynhans called Colonel Phiri back and asked him whether he doesn't pay the necessary compliments by way of saluting him before he could leave, and Colonel Phiri did so and left. I withdrew myself from his office, now "his office" referring to Colonel Johannes Hendrik Beyers Kleynhans and left him with the course chairperson and went back to my office. I even left the fie on his desk because I was not quite sure what is it that I'm going to write in the: file as what transpired.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: That's basically that, and durino the day, at some stage Colonel Johannes Hendrik Beyers Kleynhans called rre back and said to me what ... or requested me to record whatever I have seen so that he can uthise that to int cate his dissatisfaction about what transpired during his office orders where I brought Colonel Phiri to the commandant. So in my understand 7g he wrote a statement or a letter indicating his dissatisfaction to Colonel Eddie Drost which obviously will lead to the second office bearing, which was arranged for Colonel Phiri at Colonel Drost [a month later].
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: What clb you mean, in my oPinic- what happened?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The witness' opinion is in fact irrelevant, the court will make its own finding whether the conduct constitutes behaviour such as complained of.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: The incident in March, if I'm not mistaken It's supposed to have started somewhere on 5, 6 and 7 March, if my dates are correct?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Following the previous issue that I described of Colonel Johannes Hendrik Beyers Kleynhans he submitted his dissatisfaction and his request for the case to be resolved by the acting commandant, then Colonel Eddie Drost with Colonel Phiri attending [a month later]. I arranged once again the office bearing for Colonel Phiri with Colonel Eddie Drost and followed it up with the secretary upon which I was told that Colonel Eddie Drost was still briefing the ... or he was attending his communication period with the senior commander and staff course at the time. Then I went back to Colonel Phiri and indicated to him that once I have established a timing or a specific time when can we ... now "we" meaning myself and [Phiri], go and see Colonel Eddie Drost, obviously Colonel Johannes Hendrik Beyers Kleynhans would, as the complainant could have been in, I will let him know. At ... during that week we were preparing for the final stages of the course, being the certificate ceremony, so in fact from the Monday until the Thursday we were busy with clearing out of the military students, and preparing for the certificate ceremony.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Please do.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Yebo, I'm correct to say from the ' to that Friday, is it the right dates?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: 5 March 2001 was a Monday ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: The 6th was a Tuesday, the 7'h was the day on which we had to do the certificate ceremony, and the e the military students had their breakfast and departed, on the Friday we were rourr'ng off the ad-hinistration, r I'm not mistaken. But then on the 5' we went to Colonel Eddie Drost between ... or during the conversation Colonel Orost agreed with Colonel Phiri that- Colonel Phiri will 35 submit the document to indicate where was he during the feedback of somebody, or a document of some sort had to be handed in by Colonel Phiri to Colonel Eddie Drost. On Tuesday, or the 6th Colonel Eddie Drost phoned me again and asked me whether Colonel Phiri did hand in the document he was supposed to hand in, then I went back to Colonel Phiri and at some stage Sergeant ... (unclear) ... if I'm not mistaken, brought me an enveloped from Colonel Phiri to me for Colonel Eddie Drost ... addressed to Colonel Eddie Drost which I personally took to the office of Colonel Eddie Drost who was not present, and I left it with the secretary, or the admin clerk, if I'm not mistaken she's Mrs Cathy ... Cathy something at that stage.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: That was, as I indicated in the earlier version, the feedback by the I... Army Inspector General on their findings regarding the racial disharmony. At that time, Maybe I failed to indicate that at some stage Colonel Phiri approached me to request the permission to go and mend his mess dress for the certificate ceremony, to which I consented.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: The certificate ceremony ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: On the 7th we had ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: ... a dress rehearsal for the 8th.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: At Wildebeest Mess which is ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: ... the Mess thic was used by the course.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: At the Army College.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: The Inspector General was giving feedback t: the course regarding their findings, because they conducted an investigation. :hey was utilised to call whoever they wanted.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: We as the instructors, or the directing staff had no control over what were they doing, how they were doing it, what criteria did they use to call whoever, so I was only the post-box of calling people they wanted, and ensuring that those who were finished goes back to the lecture room or wherever the bigger body of the students were.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Everybody was present.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: All the military students were present:
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Some of the instructors who were present and available at the college then, were requested to attend and ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: I attended half a way because I had to arrange for tea for the visitors, being General Steyr, and General Mashviala and ... (unclear) ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: No, Colonel Phiri was not there.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: As I indicated earlier on, I said at some stage requested me to go and mend his mess dress, so unfor... I reminded hlm of the 15:00 appointment for the feedback which unfortunately he couldn't make for some other reasons which he Maybe later explained.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Yes.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE:That's correct.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Sorry, can you just repeat your cuestion?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: On that day we, as I indicated we ... I was instructed to bring Colonel Phiri on the 6th which didn't work, or never materialised because of his absentia, and earlier on it's when he was-still present it could have worked out, but he went to mend his mess dress and the Colonel, "Colonel" being .Colonel Eddie Drost was still busy with his communication period at the senior command and staff. So I extended my time to try and make sure that I arrange a new alternative timing with Colonel Eddie Drost which obviously ended up with Colonel Eddie Drost saying to me "any time you can find Phiri, you can come to my office", that was the 7th. For ... the 7th was meant for a dress rehearsal and we continued, if I'm not mistaken we started around 11:45 ... (unclear) ... and so on, Colonel Phiri was still not available. Earlier on, or the previous day I phoned his cell phone, I got his cell number from somebody, I phoned his cell phone but couldn't establish his whereabouts because each time it went over to voicemail and I left a message that, "please, please, please, Manyanya, if you can happen to come this way, make sure that we meet for the appointment vi ith Colonel Eddie Drost."
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: So, on the 7th we went to ... at around past 12:00 or to 13:00 then Phiri arrived ... Colonel Phiri arrived, he came to me and reported that unfortunately he couldn't make it and so on, and I understood. Then I said "please don't go anywhere, I'm just going to confirm with. Colonel Eddie Drost, fetch the documents and then I will link up with you" and we ... (unclear) ... Then I went to Colonel Eddie Drost's office, I informed him Phiri is around he has reported and I would -like to handle off this case. Then or to which he consented. I went back myself and Colonel Phiri went to Colonel Eddie Drost's office. Colonel Phiri waited outside, I went in and that in the office orders fine and went back with the understanding that the Colonel will be settled and down. or seated down, then I went in to bring in Colonel Phiri. Colonel Phiri came in and Colonel Eddie Drost asked him of the document that he was supposed to have submitted, and about his whereabouts the previous day, and where were he and so -on. Then ..Colonel Phiri indicated to Colonel Eddie Drost that he will not alion himself to answer any questions up until the Colonel can allow him to meet or to call his lawyers in when he makes such submission. And then the two now Colonel Phiri . and Colonel Eddie Drost didn't get to a consensus of how to deal vilth this thing, and Colonel Eddie Drost at some stage said to Colonel Phiri he's excused from his office. PROSECUTION COUNSEL Ms PAKENDORF: Okay. I just want to stop you there, when Colonel Phiri came into the office, who was in the office?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: At that time it was only Colonel Eddie Drost, the second session was to be myself and the third person was to be Colonel Phiri, because I went to hand in the file and went to call, as is the procedure, to call in Phiri.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: The normal procedure is whoever is bringing the aggrieved person, or The Accused, or whatever we can call it, the other person on orders I will, in my case I will .. I have to arrange with the person who's going to conduct the orders, being now the senior person, in this case Colonel Eddie Drost, arrange a timing with him, get the facts what is it that he wants me to bring with, additional evidence, being it a progress report or whatever, depending on the merits of the case why is this person there, then once that date and time comes I will make sure that I'm ready with the documentation, vhatever is necessary at the senior person in charge, confirm with him, leave the documents with him then call in the person I've brought in on orders. We salute and he will say okay, either take a chair or right, stand at ease. I will close the door behind me and there to facili... to listen to what is being decided and thereafter once ... whatever the decision has been recorded. I will then take the file to ensure that that decision is executed or implemented or whatever the decision. And once the guy brought on order has saluted, went ba... out then I will take the file and follow him, that's how it's being conducted.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Very closely to what I have just described.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: The only difference was Colone. Drost was standing as you are standing and as we entered Colonel Eddie Drost stanted . asking about the documents.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: And Colonel Phiri decided not to comply unless his to answer any questions except if you talk to my lawyer."
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Yeah, it was verbal tug of war.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Then at some ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: At some stage Colonel Eddie Drost tried to move around his table ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could I ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: ... towards Phiri wherein I jumped between the two of them, and he excused then Colonel Phiri
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could I ask you to return to your seat that we just have a clear recording of your evidence? Please describe what you did, at some stage?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: At some stages Colonel Eddie Drost was moving from behind his desk ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Yes?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: ... and that is the desk, here's Pniri and I'm here, behind Phiri. So Colonel Eddie Drost is trying to go or what intending ... I'm not quite sure what was in his mind but he was moving from behind the desk towards the two of us. In my opinion, or in my observation as he was trembling and the two of them voices were rising, I thought no, somebody is going to hit somebody and I jumped in-between them to stop Colonel Eddie Drost from whatever intention he had, nr.tn silence. ColonelPhiri from whatever argument he had in mind.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: In my thinking it might be that Co:onel Phiri didn't honour their agreement of the document the previous time. In opinion it can be that co... he was of the opinion Maybe that Colonel Phiri is wasting his time because of failing to honour the appointment for the office orders to he handled off. I 30 can't really.pippoint what.exactly was in his mind.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: So can I not say why didn't Cfonel Phiri answer the question of the documents simply by saying Maybe "I care it to Raymond" or "it was handed in" or something else.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: I can't really determine, or accurately say why was he rea... saying he wants the lawyers and why was Drost saying ... or agitated, I can't really
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: In my understanding, and if my memory can help me, that was the document explaining the whereabouts of Colonel Phiri during the day of the feedback, if I ... I never opened the envelope.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: I took it as sealed as it ... as I received it directly to Colonel Eddie Drost.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: But now, in my understanding the document in ... that I'm currently referring to, is the document explaining his whereabouts for the 6th
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: As I've explained Colonel Eddie Drost ... or the two of them were arguing, their voices were rising, Colonel Eddie Drost was trembling and he was moving from behind his desk towards us, I'm not quite. sure whether I say towards Phiri or myself, and now, being the facilitator o: the supposed to have been office orders I stepped in-between to say to Colone Drost "let's handle this off" or to say to Phiri "no, Manyanya, relax, let's finish fhis thing' because now I'm handling en unresolved case of Kleynhans and now it's another unresolved case of Colonel Eddie Drost.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: And .
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: No,.my course administration will heverbe finished.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Because of this outstanding issue
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE:, The only role of my being ihvolved in the . two's argument, or the three's argument is simply because I was appointed the course leader.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Oh, he demanded to be saluted back.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Okay.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Or requested, "can't you salute me back?"-
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: What was the?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: The tone of the voice?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: It was that of an angry man. Both were ... I ... I'm not quite sure how to describe ...
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: ... that situation.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Yeah,
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: It was high.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Yebo.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: As far as I can remember he kept on saying "you are excused."
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: And I stood there, not knowing, exactly the same situation as in the case ... in the Kleynhans case not knov.,:lna whether to take the bite or to follow Phiri, or to request Drost to write someth or what.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: I will be lying if I can say yes, or no'.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: I'm not quite clearly-sure what transpired.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: That's correct.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: He didn't call himself a course leader, he was appointed as the course leader. Is that correct?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: That's correct.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: The college routine started normally at 07:30 with either a prayer by, if .. the course has a Chaplain inside and the Chaplain or one member will conduct the roll call and so on until around 07:45, or 07:45 when the officer on duty amongst the military students will finalise all the outstanding arrangements regarding sick reports and so on, and then will communicate that to the course leader. I will then take that, consolidate it into a strength return for the HQ purposes' administration. During the day, or all requests to be absent somewhere elsewhere during the day will be communicated via this .. (unclear) ... point, the officer on duty, one of the military students, that will be communicated (1) to the course leader or directly to the exercise leader, the instructor currently directly involved with at qnerifirs exercising the students and the course ... the exercise leader will confirm with the course leader who will then inform the chief instructor of the whereabouts of all the OU1's.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: It's under normal circumstance it's anybody between the exercise leader and the the course leader, in this case, myself.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: the exercise leader (1) because he knows the complexity of his exe7cise. The course leader because he accounts for the Military Student at the chief instructor.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Okay, who thenaccounts to the commandant. In this specific instance there were ... or there was a student on duty but I had the overall control of the programme because that was the last week of the course, so any requests were either from the students on duty communicated directly to me because I was facilitating that exercise called "clearing out", as the course leader.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: To ensure that all that needs to be covered in the course report, or in the course closing admin is covered, all the books are returned, for example all other equipment that we borrowed, I return, for example, and that all military students are at a specific time for an appointment, or for whatever reason towards the certificate ceremony, or whatever activity has been decided on as was on the 7th the dress rehearsal that afternoon. So all those yes, you can go home, yes, you can do that, were my decisions with the authority vested in me by the chief instructor with the appointment.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Correct.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: When I went to the lecture room in the morninc. during... or just before, or just after the roll call Colonel Phiri was around.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: He was?
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: He was present. He indicated to me that he needs to make final touch-ups on his mess-dress, to which I said "no, no c-oblem" because my understanding was we either do that, or most of the office-s under instruction were mending their mess-dresses at Group 15 or in town, cr at the tailors of their choice so we agreed that he can do that. Than once, [established the time with Colonel Eddie Drost which he was not specific of. :he said "any time you can find Phiri'', which left me with a very wide variety of choices, any time you can see Phiri then you can come in. At that time, I think it was around 10:00 was looking for Phiri very silently, on my own, not really too loud, I couldn't raise him so I extended my time because I was given that leeway.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: At the ... at ... where they normally had their tea.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Wildebeest Mess.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Yes.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: That's correct.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Then the day grew older and we went closer to the rehearsal times, if I'm not mistaken that was supposed to have been 11:45 into 12:00 and so on. Then Colonel Phiri arrived, if I'm not mistaken that was towards to 12:00 or past 12:00 and then he told me that he's around and I said "okay, sharp, Manyanya, we can then continue with to handle that outstanding issue off with Colonel Eddie Drost." I went to Colonel Eddie Drost, confirmed that I have ... Phiri is around, he's here then what time can I come, he said "any time from ..." Fortunately Colonel Phiri was just in-between the bloc.< of offices and the Wildebeest Mess, not very far from where we were doing tne dress rehearsal so he accompanied me to my office, took the file and then we '.vent to Colonel Eddie Drost.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Yeah, I'm sure.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Certainly.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Cross-examination.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Cross-examination? Well, for reasons stated earlier, j.:dge, we reserve our I have no questions to the witness.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Thank you, Colonel, you're excused, you may stand back, you may withdraw. Sorry, just before you go, pardon me. The assessors do not have any questions either. Thank you, Colonel, you are excused, you may withdraw.
STATE-WITNESS RAYMOND ATLHOLONG LENTSOE: Thank you.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: As was pointed out by the prosecution yesterday the third state witness will only be available between 8 and 26 March 2004, I consequently propose that we postpone this matter, I suppose that's what the prosecution would now be doing?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: So apart from accommodating the person so that he can have an unencumbered holiday there's no other pressing need why it must be on the 8th?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right. After so many months I think 1?: more days ..(unclear) ... that's not going to make the world of difference.
3) MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Neither am I, I'm already scheduled to appear in Lohatia and in Upington in that week, so that week is not available. The week after that. the week of the 22nd to the 26tn, is the prosecution available?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Colonel Simelane, are you availz.-tie that week of the 23'd ? Thank you, Madam Prosecutor, not the 22nd
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The 23rd to the- 26th? --
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: That week, Judge, I'm not availaz-.e in ... I'll-be- dealing with a certain matter at the High Court ... (unclear) ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: At the High Court?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: In what capacity?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: No, not this one.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: No, in what capacity then?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: ... (unclear)
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Are you ... is that a High Court matter set down in which you are participating?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: And the week the 8th to the 12th?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: The clear week for me, Judge, to help you because I will be going on leave up to the 12th. The week starting from Monday the 15th to Friday the 19th I'm available the whole of that week.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: That whole week I'm already scheduled with cases in Upington and in ... at the combat training centre. That has ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: The whole ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: ... already been set with an attorney as well.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: ... (unclear) ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: The week of the 8th to the 12th I suppose the prosecution, you will be available?
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Could I implore the defence to reconsider your leave period if only then for ... well, I do not know what the defence's case is consisting of but for one witness ... one state witness at least then that should not take us much more than a day at which time we can then, in orde7 to accommodate you in your leave, then consider postponing the matter until a final date to have the matter dealt with, but we've got only that v.iindow period between the 8th and the 26th for the evidence of this witness and if you're not avalIable that week of the 22nd. I'm not available the of the 15th, can we accommodate each other and meet somewhere in the week of the 8th?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: It's difficult to see now ... why the .._1dge is penalising the ;0 defence when everybody is available. doing a matter at the Hi... at the Labour Court..that kind of period and I'm dealing with matters relating thereto., specifically if leave taken, I'm not on holiday in the usual sense although I have (unclear) within the department and the ... I have to deal with certain matters, it's .a whole complex issue and I requested that leave to deal with those issues and it would cause- me to be in Johannesburg or most of the time, attending to the records of the High Court, consulting with counsel in that Labour Court matter, instructing it, meeting with attorneys, there are a whole lot of complex issues, but my indication when I requested this leave so short of calling it by another name, I just took it from my vacation leave, but I indicated in my form if my form is drawn for that leave which has already been approved, is that I will be dealing with those Labour Court issues ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right, let me ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: ... and related issues.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: I fully appreciate that it causes some difficulty. MY question is, however, the week of the 22nd you have a High Court application, or a High Court matter that has been set down, it's not just preparation for, is that the case, as I understood you?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes ja, that is ... no ... yeah, that matter is set down but we ... why I was requesting a week because if it overlaps then it creates other problems because it's a ... you know, I don't know hoN it will go, so I then thought to be on the safe side of things ... you know. its set down ... it's set down by the 23`d, it's set down it also involves the state, Department of Defence and the ... it might ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: All right. I'm not adverse to ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: ... (unclear) ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: ... to hearing the witness after hays.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Oh! That would suit me.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yes.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah, any other time will do.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: In Which event the week of the 22'd, or rather then the 23rd to the 26th will be. a better arrangement simply by vii .._.e of the fact that I've also then_ asked, if at all, to accommodate my directorate in being available that week in Pretoria for another matter, so that is depending on this:matter whether I'm available for that week as well, so could we arrange then for the evening cf 23 March, would that suit you?
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah, that's the evening ... so any day of that week and its convenient to the court, it won't trouble me.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: Would 18:00 ...
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Yeah.
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: ... suit everybody? Right, ...
MICHAEL ALBERTUS VENTER, SENIOR MILITARY JUDGE: ... let me first hear from my assessors. Then the matter is set down, we will hear the last state witness on 23 March, 18:00, Court "C". You will make those arrangements for also the court to be available, Madam Prosecutor?
SMITH: Thank you. The matter will stand down. Colonel Phiri, thank you, you've heard the date to which the matter is postponed and the time, please be present. Thank you, you may withdraw, you're excused. may
GOODMAN MANYANYA PHIRI: Thank you, Judge.
BHEKUMNDENI QEDUSIZI PENUEL SIMELANE SC,MILITARY: Thank you, Judge.
(CASE IS POSTPONED UNTIL 23 March 2004)
THE PHIRI DEFENCES'S CASE IN VIDEO
VIDEO ONE
VIDEO VIDEO TWO
VIDEO FIVE
VIDEO SIX
VIDEO SEVEN
VIDEO EIGHT
VIDEO VIDEO NINE OF NINE
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| Kleynhans |
