date: 03-05-2016 day 1 claassen enquiry held at: law … · claassen enquiry 2 riah phiyega...

DATE: 03-05-2016

DAY 1

CLAASSEN ENQUIRY

HELD AT: LAW REFORM COMMISSION OFFICES - CENTURION

PARTIES PRESENT:

1. JUDGE CJ CLAASSEN Presiding Judge

2. ADV. BS KHUZWAYO Board Member

3. ADV. A RAWJEE Board Member

EVIDENCE TEAM

1. ADV. I JAMIE Lead Council

2. ADV. T MASUKU Council

3. ADV. D KUSEVITSKY Council

DEFENCE TEAM

1. ADV. MOKHARI Lead Council

TRANSREC CC

P.O.BOX 17119, RANDHART

ALBERTON, 1457

Tel: 011 864-4061/ Fax: 086-503-5991

www.transrec.co.za

CLAASSEN ENQUIRY 1 RIAH PHIYEGA 2016-05-03

SESSION 1

SPOKESPERSON: The spokesperson for the enquiry thank you very

much for also the time that we requested that will take some time due to

reasons beyond our control, can I make a plea to members of the media

that once the Judge and the Commissioners come in we should limit our

movements however what is going to happen is that those who have 5

cameras for taking photos we will give you 30 seconds when they come

for 30 seconds you can come however close you want to take the

photos. On the left hand side we have the evidence leaders and the

defence team is just on the way now they will be here with the National

Commissioner should also be here so just that 30 seconds you take 10

whatever photos that you take and then you resume your places, I am

just requesting for that cooperation and thank you very much.

JUDGE: I think we can start. Good morning ladies and gentlemen

welcome to the first day of this board of enquiry which has been set up

by declaration in Government Gazette by the President and I am Judge 15

Neels Claassen, this is Advocate Khuzwayo next to me and also

Advocate Rawjee from Port Elizabeth. Thank you very much and ja we

are I understand Mr Jamie that there will be some initial argument which

we will have to resolve so would you like to commence?

ADV JAMIE: That is so Judge, just to put my team on record, so 20

Advocate Ismail Jamie SC from Cape Town assisted by Advocate

Thabani Masuku and Advocate Deidré Kusevitsky instructed by the state

attorney in Pretoria.

JUDGE: Mr Mokhari.


ADV MOKHARI: Thank you Chairperson Judge Claassen together with

the other members of the board, my name is William Mokhari SC, I am

instructed by Werksmans Attorneys on behalf of the National

Commissioner of Police General Phiyega who is on my right and on my

far right is my instructing attorney Mr Sandile July, thank you. 5

JUDGE: Thank you. Yes you may proceed.

ADV JAMIE: May I refer to you as Judge?

JUDGE: Please.

ADV JAMIE: Judge as indicated in chambers there are two issues that

arise for preliminary argument, the first is whether the evidence leaders 10

are entitled to call witnesses who were not called at the Farlam

Commission and if so in what manner that may be done and the second

issue is the scope of the enquiry into the National Commission is fitness

for office and in particular whether that is limited to the actual evidence

that she led at the Farlam Commission and those are the two issues I 15

am going to deal with.

JUDGE: Yes.

ADV JAMIE: I will be making reference both to our statement of case

and the statement of response and to certain other documents,

attachments and I see that, could I perhaps just enquire as to do the 20

members of the board not have the statements of ...[intervenes]

JUDGE: We all have that yes, not all the statements of the witnesses.

ADV JAMIE: No, no, not the statements of the witnesses the statement

...[intervenes]


JUDGE: Your claim and the statement of defence we do have.

ADV JAMIE: Together with the attachments?

JUDGE: Yes we do have.

ADV JAMIE: It would make it easier to follow the argument if those were

before the members of the board is that at all possible? 5

JUDGE: Ja, well I understand that our secretary did ask which files

would be required for this mornings hearing and apparently she was told

no files would be necessary for this first round of hearing, I do not know

if you were party to that conversation?

ADV JAMIE: I think the understanding was with reference to files were 10

the various files of the transcript and the exhibits.

JUDGE: Oh I see.

ADV JAMIE: Which have been made available, we were not, we thought

the pleadings would by their very nature be before you when, I am sorry

if I misled anyone in that regard, it just will make it a lot easier if you 15

have those documents before you.

ADV MOKHARI: Sorry Judge if I may come in, from our side maybe to

make things much easier in anticipation of the argument on these two in

limine points we prepared those documents that we believe it would be

relevant and if we can hand up the three copies that we have made for 20

the panel and we have already given the same copies then to our

colleagues, the only thing that they will not have will be the statement of

case and the statement of defence but everything else including the

statements of the witnesses that they want to call will be in this bundle


so if we can just hand up then for you.

JUDGE: Yes you may hand it up, I wonder if we can ask our secretary if

she can possibly go and fetch our files so that we can just have them

here in regard to the statement of case and the defence.

ADV MOKHARI: In fact my attorney tells me that they also prepared the 5

statements separately which we can hand up as well then they will make

the life of everybody easier.

JUDGE: Alright but in the meantime I would like you to proceed then

and we will see to it that those files are being fetched.

ADV JAMIE: I will proceed Judge. Judge and the members of the board 10

the first issue namely the witnesses that the evidence leaders are

entitled to call that issues arises because of certain paragraphs in the

National Commissioners statement of response, in particular paragraph

54 reads as follows,

“The evidence led at the Farlam Commission simply assists this 15

enquiry in so far as it makes it unnecessary for those witnesses who

have already testified to come and testify again in respect of matters that

they have already testified about because to do so would be repetitive

and waste of time and resources”.

And we have got no quibble with that statement. Then paragraph 20

55,

“It may however be that one of the parties requires a particular

witness to be called despite that that witness testified at the Farlam

Commission but the calling of such a witness should be limited to

clarification in respect of his or her evidence”. 25


At the Farlam Commission not the rehashing of the evidence he or

she has already led. And to the extent that it is suggested there that the

only purpose of calling witnesses who have already testified at the

Farlam Commission would be to clarify their evidence but they cannot

lead further evidence, we take issue with that proposition. Paragraph 55 5

then goes on to say the following and this is perhaps the nub of the issue

between the parties at this point on the evidence that may be led,

“It is however impermissible for the evidence leaders to call

witnesses who were at all relevant times available to testify at the Farlam

Commission but were not called or to call witnesses who testified at the 10

Farlam Commission in order to bolster their evidence which they already

led at the Farlam Commission”.

Which is only a repeat of the previous proposition but the

important point is the assertion that it is impermissible for the evidence

leaders to call witnesses who at all relevant times were available to 15

testify at the Farlam Commission but were not called. And then it goes

on and it concludes paragraph 55,

“Any attempt by the evidence leaders to call the witnesses as they

have alluded to in their statement of case will be opposed”.

And we read that to mean it seems all witnesses, so hence the 20

need for this ruling members of the board. Our first proposition is that it

is not clear on what basis these assertions are made and no authority or

basis therefore is set out but when regard is had to begin with, with the

and we know this is an enquiry that has been established by the

President in terms of section 9 [1] of the Police Act, section 9 [1] reads 25


members of the board,

“Subject to this section, subsections 1 to 8 of section 8 shall apply

mutatis mutandis to any enquiry into allegations of misconduct by the

National or Provincial Commissioner or into his or her fitness for office or

capacity for executing his or her official duties efficiently”. 5

Now you will be aware that all three of those sub paragraphs or

sub parts of 9 [1] are at issue in this case, they are all referred to

expressly in the terms of reference of this board of enquiry. When one

goes then to section 8 which has been incorporated by reference 9 [1], 8

[4] provides in broad terms for the rights of the Commissioner concerned 10

who can be a Provincial Commissioner or a National Commissioner, in

this case the National Commissioner at such an enquiry as this, she may

be assisted or represented by another person or legal representative,

she may make written representations to the board, she may be present

at the enquiry, she may give evidence thereat, cross-examine witnesses 15

not called by him or her be heard and then call witnesses and that is an

open ended authorisation, she may call witnesses.

And then [h] have access to documents relevant to the enquiry.

And then sub 5 which is also incorporated in 9 [1] by reference is

important, the board of enquiry shall determine its own procedure. Now 20

members this board has done that in its rules which have been adopted.

I wish to refer in particular to and the rules deal separately with the rights

of the evidence leaders, procedural rights of the evidence leaders, the

Commissioner and third parties and 2 [1] under the broad heading of

submissions in rule says, 25


“The evidence leaders shall by date directed by the board file their

submissions which should include 2 [1] [1] statements on oath by

persons who are able to depose to any factual allegations made in the

submissions”.

And once again that is an open ended authorisation to the 5

evidence leaders to submit together with their submissions which you

have statements of witnesses, factual statements which support what is

alleged in the submissions and there is no, obviously apparently from

what I have just read to you, there is no restriction of this sort suggested

by our colleagues across the hall. Then in 2 [2] it is the Commissioners 10

rights and they are on the same wording, file submissions which should

not include statements under oath by persons who are able to depose to

any factual allegations and the only restriction is the person to be called

must be able to depose to factual allegations.

And then in the case of third parties it is the same regime under 15

2.3 and 2.3.1. And then just to finish on this topic under the heading

hearings in part 3 of the rules under 3.3 it provides that any party and

parties defined as including third parties for purposes of these rules but

they include the evidence leaders and the defence, any party may

through the secretariat and after approval from the board call upon any 20

competent and compellable person to give evidence on any relevant

aspect of the terms of reference and we submit that that provision is

dispositive of the argument that we had that we are in some way without

understanding how that comes about limited with regard to the evidence

that we may call. 25


We submit that there is no basis for that and that subject to

relevance the evidence leaders may call any witness who can testify in

support of any of the terms of reference and I will obviously respond

when I hear the argument but that is our submission in respect of the

first point. The second point is the Scurvel [?] enquiry in the National 5

Commissioners fitness for office, this arises members of the board from

paragraphs 160 and 161 of the statement of case where on page 102 of

our submissions we deal with this fifth leg of the terms of reference and

we say the following there, in 160,

“The evidence leaders interpret these terms of reference”. 10

And you will recall the terms of reference Judge is whether the

overall testimony of the National Commissioner at the Commission was

in keeping with the office which he holds and the discharge of the duties

commensurate therewith. Now we interpret that term of reference to

refer not only to the manner in which the National Commissioner testified 15

but to the substance and content of her testimony and that is what we

are saying at 160, that is where such evidence demonstrated proper

understanding and appreciation of her role as National Commissioner.

And then in 161 we say the following,

“Secondly the evidence leaders are of the view that the enquiry 20

into the National Commissioners fitness for office requires a

consideration not only of her testimony at the Farlam Commission but

also the interaction with the Commission in general and her

representations to the President in response to the findings and

recommendations of the Farlam Commission and indeed her interactions 25


with this board of enquiry. We accordingly deal with these aspects in our

submission hereunder”.

I see and know that the National Commissioner is present, I did

not have the opportunity to greet her but I just want to make clear in

making the submissions we do not suggest that she would or interact 5

any other than properly with this board but I am using an example to

demonstrate why the argument against what we say cannot with respect

be correct. If and let us leave it at the level of supposition, if the National

Commissioner either in dealing with the Farlam Commission or this

board acted in a manner that is objectively dishonourable or in some or 10

other way not consonant with her duties as National Commissioner it

would be an absurd and indeed perverse situation that this board would

be, because of a little interpretation of the term of reference 5 be limited

or have to ignore all of that and simply look at the evidence that she

gave and we submit that is not what was intended by the President in 15

setting up this board and it is not the way the term of reference should

be read.

We submit in line with recent Constitutional Court and Supreme

Court of Appeal juris prudins with regard to the interpretation of contracts

and legislation that term of reference 5 must be read purposively and not 20

literally otherwise it could lead to the sort of absurd results that I have

just postulated. And we say such a reading of term of reference 5 is

compelled inter alia by the relevant constitutional provisions and I would

like to refer the members of the board to section 207 of the constitution

which provides that the President, subsection 1 sorry, provides that the 25


President as head of the National Executive must appoint a woman or a

man as a National Commissioner of the Police Service to control and

manage the police service, that person stands at the head of this

organisation and must lead by example, and you will with respect

examine her interactions inter alia with the Farlam Commission in the 5

light thereof.

The second provision that I want to refer you to is section 199 [5]

of the constitution which falls under the general heading of security

services of which the police obviously is one and subsection 5 says,

“The security services must act and must teach and require their 10

members to act in accordance with the constitution and the law including

customary international law and international agreements binding on the

Republic”.

And that again gives the proper context, constitutional context we

submit to the conduct and examination of the conduct of the National 15

Commissioner, she is not a low level functionary whom we can excuse

shortcomings or certain shortcomings etcetera she must be held with

respect to a high standard and we submit the interpretation we contend

for would give effect to that and not the one contended for by our

colleagues and there are two particular aspects that you will be aware of 20

them having read the statement of case that we rely on in support of this,

our interpretation of this term of reference and how we intend

approaching it and dealing with it and they are what we refer to at page

108 of our statement of claim as the de Rover incident and you will recall

what that was about members of the board. That was the expert witness 25


who it would appear, do I need to elaborate on that Judge?

JUDGE: Which one?

ADV JAMIE: The incident.

JUDGE: I think you should yes.

ADV JAMIE: Very well. The de Rover incident is dealt with on page 108 5

of our statement of case and what we say there in page 108 from para

173, we make the point that at the commencement of the Farlam

Commission the National Commissioner undertook that the police would

give its full cooperation to the Commissioner and that is recorded in the

Farlam Commission report and in 174 we say, 10

“This was not the first occasion on which such and undertaking

had been given”.

In the aforementioned media statement of 17 August 2012 the

National Commissioner concluded the media statement as follows,

“The police will give their full cooperation with any investigation 15

into this tragic incident”.

And then in 175 we say that,

“Notwithstanding the above solemn undertaking it has now

transpired that the National Commissioner acting personally instructed

her legal team not to cooperate with the Farlam Commission in respect 20

of a crucial part of its work, in this regard we attach hereto as exhibit EL5

an email sent by the police attorney to the National Commissioner and

inadvertently copied to the other legal teams of the Farlam Commission”.

The email reads as follows,


“Dear National Commissioner, I am instructed by the legal team to

communicate this letter to you, we refer to your letter dated 10 June

2013 conveying the instruction to the legal team that the SAPS

management declines the instruction of the Chairperson of the

Commission that various expert witnesses must hold a conference of 5

experts to identify areas of commonality, differences and reasons for

holding different opinions on particular points. We hereby express our

regret that the instruction of the Chairperson of the Commission is

misunderstood, the legal team has on several occasions attempted to

explain that the question of which witnesses are to testify and how their 10

testimony is to be rendered to the Commission is a legal question to be

answered by the legal team it is not a matter on which SAPS as a client

can give instructions purported to be done in this correspondence.

We must emphasise that Mr de Rover an independent expert is

entitled to express his professional opinion without interference, 15

influence or instruction what Mr de Rover cannot do is to direct how his

evidence is to be presented before the Commission. We implore the

National Commissioner to reconsider this instruction and revert to us”.

And then we then say in 176,

“It is clear from the above email the Chairperson the Commission 20

Judge Farlam had instructed that the various experts should meet in

order to identify areas of commonality, differences and the reasons for

such differences, this is common practice in legal proceedings where

there are different expert opinions. The National Commissioner acting

personally instructed a legal team to decline that the SAPS expert Mr 25


Rover attend such meeting, should assist in this position notwithstanding

several attempts on the part of the SAPS legal team to persuade her that

her stance was inappropriate and non justifiable.

This inadvertently disclosed communication from the attorney for

the SAPS to the National Commissioner indicates to the latter 5

notwithstanding our undertaking to cooperate fully with the Farlam

Commission took a conscious decision to frustrate the proper conduct of

that Commission in a crucial respect and without having any justification

therefore in the absence of any explanation that the National

Commissioner may be able to furnish for her actions in this regard it is 10

submitted that this conduct on her part on its own demonstrates her

unfitness for the high position that she holds”.

Now that is a highly pertinent and serious allegation that is made

and it would, we submit this board of enquiry would not be carrying out

its function if we were to simply ignore that because that is not evidence, 15

it is material that arises directly from her interactions with the Farlam

Commission and we submit we are entitled to rely upon it. The second

aspect is the statement in her representations to the President, she was

afforded an opportunity as you know after the Farlam Commission report

to respond to the report and she provided the document which is an 20

annexure to our statement of case and in that document we refer to it at

pages 119 and 120 of our statement of case, sorry it is at 120 not 119,

120.

It us under the heading, ‘The National Commissioners

Unwarranted Attacks on the Farlam Commission’ and there we say in 25


para 198,

“We have referred in paragraph 72 above to the assertion by the

National Commissioner in her representations to the President that the

Farlam Commission made a finding that can only be regarded as

malicious in its content and scope”. 5

This assertion is to be found at page 13 of her representations.

We say that,

“We deal in our submissions above with why the conclusions

reached for the Farlam Commission in respect of the National

Commissioners assertions are far from being malicious in fact entirely 10

correct however the point for present purposes is that for a public

servant like the National Commissioner to accuse a Judge of the High

Court, in fact my apologies it is the Judge of the Supreme Court of

Appeal of malice is in the absence of compelling evidence to support

such contention prima facie evidence of her unfitness for the office, 15

albeit that Judge Farlam was presiding over the commission of enquiry it

is submitted that the following provisions of the constitution are relevant

to this issue and we refer then to 165 of the constitution sub 2 and sub 3

that the courts are independent and subject only to the constitution and

the law which they must apply impartially without fear, favour or 20

prejudice. No person or organ of state may interfere with the functioning

of the courts”

And we then say in 202 that,

“To accuse a Judge who is exercising judicial or at least

...[indistinct] judicial functions at the appointment of the President of the 25


republic of malice is a serious charge which if unwarranted reflects

adversely on the office in judgment of the person making such charge.

In the present case for the reasons aforesaid there is no basis for

alleging malice against the Commission and in particular against Judge

Farlam, the evidence leaders submit that by making this unwarranted 5

attack on Judge Farlam the National Commissioners provided further

evidence of her unfitness for office and her inability to carry out her

duties in accordance with the law”.

I just want to refer the members well that actually goes to the

merits so I am not going to deal with that but we submit these are two 10

highly pertinent issues which arise from the Commissioners interaction

with the Farlam Commission and in particular her representations which

she submitted was in effect a foreshadowing of her response to this

board, she then gave as it were her reaction to what the Farlam

Commission found and it would again be, I use the word deliberately, it 15

would be perverse to ignore her earlier response and to treat this as a

...[indistinct] that would simply be putting blinkers on your eyes and

would prevent you from getting to the bottom of the question of whether

or not the National Commissioner is fit for office and able to carry out her

duties efficiently and according to law. 20

And if authority is required and can I just make this submission,

even if you are against us on the submissions we make on the second

ground then there is another basis upon which we should be allowed to

refer to her earlier representations and that is something that all of you

will be well aware of is the law of evidence relating to previous 25


statements, inconsistent statements and if any authority for that is

required then if I could refer to Schmidt law of evidence at page 9 – 60

where the author says the following, albeit in the context of criminal law

although the footnote is to a civil case,

“Although it is perfectly permissible during cross-examination to 5

ask a witness whether he has previously made an inconsistent statement

he may not be questioned about an inadmissible statement in this

matter”.

And we are not dealing with an inadmissible statement and the

authority for that proposition members of the board is the case of de Wet 10

versus President Versekerings Maatskappy Beperk 1978 [3] SA 495 [C]

at 498 where in civil proceedings previous inconsistent statements made

to the police and to the criminal court were put to the witness, this is

standard procedure and that is the comment by Schmidt. So either on

the basis that it should be admissible on a proper interpretation of term 15

of reference 2.5 alternatively on the basis that to the extent that the or if

the National Commissioner testifies at this board of enquiry we should be

permitted to cross-examine her on her response, we submit it should

probably be before the board, those are our submissions.

JUDGE: Yes Mr Mokhari. 20

ADV MOKHARI: Thank you Judge Claassen and members of the board.

I will like to start by having some form of sequence in my argument, I

would like to first refer you to the correspondence which I will do and

then the next topic that I will deal with I will refer you to the terms of

reference which establishes this board and the third point or third topic I 25


will deal with the statement of case as we have it from the evidence

leaders and the fourth point then I will deal with the evidence that the

evidence leaders seek to be permitted to lead.

JUDGE: Just say that again please the last point?

ADV MOKHARI: The last point I will deal with the evidence from the 5

statements that the evidence leaders are asking permission from this

board to lead. Well I am referring to this last topic precisely because the

submissions that have been made have referred to no single statement

of any of the witnesses that they want to call and why then that has to be

accepted and that is actually what they were supposed to do. Then let 10

us start with this bundle that we have handed up to you, I see that the

index says index of correspondence, maybe it will be appropriate with

your permission Chair for identification purposes refer to it as the

correspondence bundle.

JUDGE: Let us just mark it as exhibit A. 15

ADV MOKHARI: Exhibit A, thank you Judge. So exhibit A consists of the

minutes of the meeting of 18 January 2016 and that was the preparatory

meeting convened by yourselves in order to ensure that everybody

understands the precise scope, the nature of this enquiry and the

procedure that is to be followed or contemplated by this enquiry. Then 20

from the second item then we have correspondence which ensued

between the evidence leaders and ourselves as the defence but I would

like to without really going through much of the correspondence to take

you to item 27 which is page 81 of that document of that bundle and this

now will be a letter from Werksmans Attorneys dated 28 April 2016. 25


If we can quickly look at that letter so that we can understand the

scope of the arguments pertaining to these particular points. In this

letter which was a culmination of a teleconference which took place

between the respective parties legal representatives on Thursday was

recording the discussion, then it says, 5

“We address this letter to you confirm a teleconference discussion

that took place between our council and the evidence leaders this

morning 28 April 2016, it was agreed between us and our council that we

will address this letter to you confirming the discussion. What was

agreed between our respective council, the agreement which we align 10

ourselves with is that (1) the evidence leaders will raise two in limine

points at the commencement of the enquiry on 3 may 2016 which are

whether the evidence leaders are entitled to call witnesses who did not

testify at the Farlam Commission of enquiry and (2) whether the

evidence leaders are entitled to rely on evidence which occurred after 15

the Farlam Commission of enquiry had been concluded such as the

representations which were made by the National Commissioner to the

President.

The abovementioned points will be argued and the ruling will be

made by Judge Claassen. Our clients position in relation to the above 20

which was also communicated to the evidence leaders during the

teleconference is that the evidence leaders are bound by the terms of

reference which established this enquiry and therefore they are not

permitted to call witnesses who did not testify before Farlam in order to

augment or bolster a case that was never made before Farlam and are 25


also accordingly not permitted to rely on evidence which occurred

subsequent to the Farlam commission of enquiry”.

With this letter that I have just read out to you then that should

take us to the next point that I would like to argue which is the terms of

reference because in that letter we specifically refer the evidence 5

leaders to the terms of reference which we say are bound, that bind this

enquiry and bind all of us who participate in it. If we can just look at this

terms of reference I do not know if we have them before you but I will

read them out because they are of critical importance right from the first

paragraph of it, 10

“The terms of reference contained in the schedule which have

subsequently been amended”

And I will come to the amendment when I argue in a different

context,

“It says whereas on 26 August 2012 I appointed a commission of 15

enquiry chaired by honourable Judge Farlam to investigate matters of

public, national and international concern arising out of the tragic

incidents at the Lonmin Mine in Marikana North West Province and

whereas the Commission has finalised its investigation and submitted its

report to me and whereas the Commission inter alia recommended that 20

steps should be taken in terms of section 9 of the South African Police

Service Act 1995 to enquire into the fitness of Commissioner Phiyega the

National Commissioner to hold office and whether she is guilty of

misconduct.

And whereas the National Commissioner was invited by me to 25


make representations regarding the report and the recommendations of

the Commission and has in fact done so now therefore

1) In terms of powers vested in me in terms of section 9 of the South

African Police Services Act I hereby establish a board of enquiry

into allegations of misconduct by the National Commissioner 5

and/or into her fitness to hold such office and/or into her capacity

for executing her official duties efficiently and according to law.

2) The board of enquiry shall enquire into whether

a. The National Commissioner acting together with other

leadership of the South African Police Service or alone 10

misled the Commission by concealing that it had made the

decision to implement a tactical option taken at the National

Management Forum Meeting on or about 15 August 2012.

b. In its amended form whether the Commissioner in taking the

decision to implement the tactical option ought reasonably 15

to have foreseen the tragic and catastrophic consequences

which ensued.

c. The remarks by the National Commissioner at the SAPS

parade on 17 August 2012 would have been understood to

be an unqualified endorsement of the police action and 20

thereby having the consequence of undermining, frustrating

or otherwise impeding the work of the Commission.

d. The report prepared by the National Commissioner for the

President of the Republic on 16 August 2012 and the media

statement subsequently issued on 17 August 2012 was 25


deliberately amended to conceal the fact that there was two

shooting incidents, scene 1 and scene 2 resulting in

misleading the public that all the death had occurred at

scene 1 which arose out of members of the SAPS having to

defend themselves from an advancing mass. 5

e. The overall testimony by the National Commissioner at the

Commission was in keeping with the office which she holds

and the discharge of her duties commensurate therewith”.

So these are the terms of reference which were prepared and

issued by the President of the Republic of South Africa in terms of the 10

powers vested in him by section 9 of the South African Police Services

Act and these terms of reference cannot be changed by anybody else

but by the President. In fact this point was alluded to in one of our

strategy meeting with this board where you made it very clear when we

were contemplating whether term of reference 2.2 reads quite well in 15

order to give meaning and then her submission had to be made to the

President for the President to amend it and this board of enquiry could

not even on its own despite the powers vested in it by the President to

amend it not even the evidence leaders could amend it.

So we know that the terms of reference are there, they delineate 20

the scope within which this enquiry must take place and they have to be

respected also by the evidence leaders. But I would like to demonstrate

as well when I move to the third point that even the evidence leaders

when they prepared their statement of case they understood that they

are constrained by the terms of reference that their statement of case 25


must conform and must be compatible to the terms of reference, they

understood that they cannot go outside the terms of reference, they

understood that very well and let us see how they understood it so now I

am going to the third point of now looking at their statement of case so if

you can then take the file which was, the arch lever files which are 5

handed to you which contain the statement of case as well as the

statement of response, I am not sure the statement of response is not

there.

The arch lever file which were handed up but in any event I will

read the relevant paragraphs of the statements of case which I am 10

referring to if then you do not have them in front of you. Apparently then

I am told by my attorney that the files contain other statements, I was

intending when I was asking my attorney to make available the

statement of case and the statement of response because they were not

made available by the evidence leaders then for your attention but I will 15

read the relevant paragraphs you can just note then the paragraphs

which I will read out.

Before I read the paragraph then let me say also the following

which will also assist in ensuring that we understand how this enquiry

was contemplated to be proceeded with. It was also in one of the 20

strategy meetings agreed that the evidence leaders will put together a

statement and that statement is what they gave us and they called it a

statement of case, this statement was to delineate the parameters and to

make it clear to us as the defence and to this board what is the case that

they want the National Commissioner to meet today. So the National 25


Commissioner also in terms of the agreement she was required to file a

statement of response in answer to the statement of case which she also

did, but let us look at page 9 that is now the typed pages which I am

referring to because both the statement of case and the statement of

response are not paginated. So I am referring to page 9 of the 5

statement of case paragraph 3 at the top, this is what the evidence

leaders say,

“An enquiry in terms of section 9 of the SAPS Act is akin to a

disciplinary enquiry and is structured as such. The terms of reference

set out the scope of the enquiry. It is clear that his is not a general 10

enquiry into the fitness of the National Commissioner”.

And that is what we are told by the evidence leaders but it is

confined to the conduct of the National Commissioner in relation to the

events at Marikana and her evidence in relation thereto at the Farlam

Commission and that is what they are saying in paragraph 3, 15

“The enquiry into General Phiyega’s fitness for office arises from

the adverse findings made by the Farlam Comm ission”.

So now the evidence leaders understand when they write this

paragraph 3 that there are terms of reference which constrain them and

they understand that the terms of reference are not calling for a general 20

enquiry of the fitness of the National Commissioner but are calling for the

enquiry into a fitness in relation to what happened at Marikana and in

relation to the Farlam Commission of enquiry in particular and they even

make it so succinctly clear, they say in particular the adverse findings

made by the Farlam Commission and they understand the terms of 25


reference quite well because the terms of reference have closed the

scope that I want to set up, and that is the President, I am setting up the

board of enquiry which is going to tell me whether based on what

happened in the Marikana Commission whether she is guilty of those

things that Farlam has said which were adverse to her, those findings 5

and tell me if she is fit to hold office in that context, not in a general

context. So that is what they understood and we then responded to this

paragraph 3 ...[intervenes]

JUDGE: May I just interrupt you there Mr Mokhari, what the evidence

leaders understood or did not understand does not necessarily limit this 10

board of enquiry to make its own decision as to what is relevant.

ADV MOKHARI: No it does not, it does not at all, it does not because

this board of enquiry is going to make its decisions in accordance with

the terms of reference and the way it understands the terms of reference

that is perfectly correct yes so then you are quite correct that whether 15

the evidence leaders are wrong or right this board has to make a

decision in terms of what it understands the terms of reference to be. So

now what we then did was then to respond to paragraph 3 of the

statement of case in the statement of response and that we find at page

4, that is the typed page 4 of the statement of response paragraph 5 20

responding to paragraph 3. Then I would like to read it into record it is

quite significant simply put the enquiry in terms of section 9 of the SAPS

Act is a disciplinary enquiry involving the employer, the President of the

government of the Republic of South Africa and the employee, the

National Commissioner as employee of the state. The terms of 25


reference set out in the schedule allegations that are made by the

employer against the employee, it is correct that this enquiry is not about

the general enquiry into the fitness of the National Commissioner, it is

correct that this enquiry is confined to the conduct of the National

Commissioner in relation to events at Marikana and her evidence in 5

relation thereto at the Marikana Commission and nothing else. It is also

correct that the enquiry into the fitness of the National Commissioner

arises from the adverse findings made by the Farlam Commission of

enquiry. The significance of this is that,

1) The Farlam Commission was a fact finding mission. 10

2) Could make no findings which are binding on any person or party.

3) Its findings insofar as they are adverse to a person or a party

merely constitute prima facie evidence against that party or

person.

4) And therefore such adverse findings are in no way conclusive and 15

definitive.

5) And enquiry of this nature provides the National Commissioner

with an opportunity to if needs be

a. Discredit the findings in order to demonstrate to this enquiry

that there was no legal or factual basis for such findings. 20

b. Adduce evidence to this enquiry in person or through other

persons including documentary and otherwise about her

innocence.

6) Demonstrate to this enquiry that the said adverse findings are not


supported by the evidence that was led during the Farlam

Commission or that the evidence that was available to the Farlam

Commission points to the opposite direction of the conclusions

reached by the Farlam Commission.

7) The upshot of this is that this enquiry which sits as a disciplinary 5

enquiry or are linked to a disciplinary enquiry is not bound by the

adverse findings made by the Farlam Commission but it is entitled

to accept as a point of departure that those adverse findings

constitute prima facie evidence against the National

Commissioner which still required to be proven by the employer 10

for purposes of this enquiry on the balance of probabilities.

JUDGE: Mr Mokhari may I interrupt you again and just a question. Are

you suggesting that actions, conduct or statements by the National

Commissioner ex post facto the Farlam Commission which is related to

the Farlam Commission should therefore be excluded from this enquiry? 15

ADV MOKHARI: Yes so we say so in the context of the manner in which

the terms of reference have been crafted because they become, they

make it specifically clear if we can go to, back to the terms of reference

that this terms of reference are in relation to the events at Marikana and

the evidence that she tendered at Marikana so if there is anything which 20

happened outside the Marikana, that is after the Farlam Commission had

issued its report that is information which in any event was already within

the knowledge of the President and nothing prevented the President

from putting it in the term of reference but the manner in which the

President has put his terms of reference he closed it into the events of 25


Marikana.

If I give an example for instance of what Mr Jamie referred to by

the representations that the National Commissioner made to the

President after the report was issued, the representations at the time

when the President prepared this terms of reference were with him and 5

he was aware of them and what now the evidence leaders are doing is to

now extend the scope then to say that she actually then misled and she

lied to the President but that is not what the President is saying in the

terms of reference because if the President believed that the

representations misled him or that she was lying to him he would have 10

then put it as a term of reference so that it can be then properly dealt

with.

So we are not talking of something which was not within their

knowledge or something which then happened after the terms of

reference had been issued so there is a context to it so that context then 15

must be the President has made it clear what he wants the parameters

of this enquiry to be so if for instance the evidence leaders wanted the

terms of reference to extend to whether the representations to the

President were misleading they would have simply then gone back to the

President and say that we want you to extend the scope of the term of 20

reference and include this particular point the same way, sorry so, yes so

what I was saying is that this is a particular event which if the President

was complaining about he will have put it as a term of reference the

same way as when we had a problem with term 2.2 we had to go back to

the President. 25


I remember that Chair he even wanted to find out if there are any

other amendments which are contemplated and it was clear that that was

the only and since that time we have not seen or any request that the

terms of reference must be expanded and I am not saying that the

President cannot expand his terms of reference and I am not even 5

saying that he cannot amend them, he can even amend them to include

some of the things which many people were saying in the media, there

were some were even lobbying that I mean he must include all sorts of

things that it must be a wider enquiry which deals with all sorts of things

about her conduct but the President stuck to his guns, he said that this 10

are my terms of reference and no other.

JUDGE: Mr Mokhari if the National Commissioner were to testify in this

enquiry that would be evidence which she submits ex post facto the

Farlam Commission not so?

ADV MOKHARI: Yes that is the evidence that she submits ex post facto. 15

JUDGE: Alright well now why should we then take cognisance of her

evidence ex post facto the Farlam Commission tendered at this enquiry

but not any ex post facto statements she made or representations she

made which concerned her conduct regarding the Marikana and Farlam

Enquiry? 20

ADV MOKHARI: Well the answer to that Chair is that as the evidence

leaders have conceded as I have pointed out to you in paragraph 3 of

the statement of case that this is the parameter that they understand to

be that this enquiry is a disciplinary enquiry per say so in a disciplinary

enquiry the employer will be bound by the charges as he has put them 25


unless he amends them but the employee is entitled as a matter of fact

and law to defend himself or herself and to adduce whatever evidence

which will persuade the presiding officer that she is innocent so we are

talking of two different parties who are not standing on the same

pedestal, the employer is standing on a pedestal where he has made his 5

case clear that I am accusing of A, B and C and he cannot come and say

that I am now accusing you of D when then he comes to the enquiry.

But the employee is entitled to adduce whatever evidence to

come with evidence which the intention is to persuade you as the

presiding officers that I am not guilty of this conduct, so we are talking of 10

two different things so the evidence leaders cannot place themselves in

the position of the National Commissioner because she does not have

the onus of proof they actually agreed that they do not, that they have

the onus of proof, she only have the duty of rebuttal so when she rebuts

she can rebut by adducing evidence which will persuade you. Mr Jamie 15

actually then made submission about if the National Commissioner

testifies for instance that he will be entitled then to cross-examine her

about subsequent events but we are talking, but then he is talking about

a completely different context because now you are talking in the context

of cross-examination, cross-examination is broader in its nature, you can 20

cross-examine a witness about anything as long as you are able to show

what you are trying to solicit and in relation to the relevance so that will

be cross-examination. But we are talking about the case that she is

supposed to meet not when she is being cross-examined, of course

when he cross-examines her he can cross-examine her about anything 25


and he can even test her suitability by making reference to some of the

remarks that she has made, there is nothing wrong with that and we

understand that perfectly well, so in that context and yes we understand

and we accept that. So the point that I am making is that the President

makes it very clear that these are the terms of reference and if the 5

evidence leaders believe that they have got difficulty with the manner in

which the terms of reference have been crafted eight months after they

have been crafted then they are not explaining to you why until today

they did not go back to the President and say Mr President we want you

to include a term of reference which will allow us to adduce evidence to 10

show that she is not fit even post Marikana because she continued with

the same conduct in our view which she displayed at Marikana because

she even lied to you so the President has never said that she lied to him.

In fact in the term of reference he refers to the very same

representations which she made to show that he was aware of the 15

representations which she made to him but when he comes with the

terms of reference which are five, all of them are five, he does not

include that part because he does not say that she misled him, they

cannot come today and say that they want to persuade you that she lied

in the representations is outside the terms of reference which they say 20

that they understand them to be in paragraph 3 of the statement of case.

So that is the context in which then we are saying that they will not be

permitted so in fact then let me put it this way, it is not suggested for a

moment that the evidence leaders are not entitled to adduce evidence, in

fact we can never say that because that is part of the minutes of the 25


meeting that was held here with the strategy meeting.

But they can adduce evidence but then it must be evidence

which is in relation to the terms of reference so it means that each time

when they want to adduce evidence they should persuade you that this

evidence is actually in accordance with the terms of reference and it is 5

relevant, in fact if I can take you Chair to the letter which you will find in

exhibit A page 83 that is now the page 83 that is the letter which was

addressed by yourselves to an organisation called Serrie and what I

submit is that what you captured in paragraph 2 applies with equal force

to any party to this proceedings because what was succinctly captured 10

here was that,

“Please note that service application will only be entertained

when its proposed evidence or submissions are not part of evidence

leaders case and are relevant and of assistance to the board in making

findings and recommendations on the boards terms of reference”. 15

So very clear, so the issue is not that they cannot lead evidence,

if they lead evidence it must be evidence which is in terms of the terms

of reference which are binding to this enquiry and that it must be relevant

so it means that they must then persuade you what is the relevance of

the evidence of certain witnesses who are not going to add anything or 20

change the findings that were made by Farlam, what we know is that

Farlam has made a finding, adverse findings and it was on the basis of

those adverse findings that the President established this board of

enquiry. I cannot imagine a situation Chair where the evidence leaders

are going to come here and say to you that they do not agree with the 25


findings of Farlam or they will agree with this one and do not agree with

that one because they are basing their case on the adverse findings that

were made by Farlam and they are embracing his conclusions thereat so

that is really the basis of that.

So when they come they must be able to show that how will this 5

evidence which this witness will tender assist this board in ensuring that

it executes its mandate in terms of this terms of reference and how this

evidence is in consonant with the findings that were made by Farlam and

against the National Commissioner otherwise if we were to allow the

evidence leaders then to come with anything outside the terms of 10

reference then we are now back to the general enquiry into her fitness

then anybody else then can come with whatever allegations, we may as

well even Serrie to come because Serrie also wants to come here and

then and come with all sorts of things that they want to show that th is

person is not fit. 15

So we are saying in brief, the evidence leaders in their statement

of case understand exactly what the terms of reference are and they

have set out and they have accepted that the terms of reference bind

them. You must have realised when Mr Jamie was making his

submissions he never referred you to the terms of reference and as to 20

how the evidence that he is saying that he wants to adduce is going to

fall within the terms of reference, al what we are told is that their

understanding is this terms of reference do not require an interpretation,

there are clear and simple, you do not require any interpretation of these

terms of reference, they are what they are, if you do not like them you 25


are not constrained because you can always go back to the President

and say that Mr President these terms of reference make it difficult for us

to prove our case so please put them in a manner that it will enable us to

put our case and to make it acceptable then to the board so that is what

then they are supposed to have done but they failed to do so and so 5

therefore they are bound by the terms of reference as they are.

So Mr Jamie then says that you must read the terms of

reference in conjunction with section 9 of the South African Police

Services Act but then section 9 does not say anything other than telling

us about the President having to set up the board of enquiry but then the 10

board of enquiry must have terms of reference and those terms of

reference are the ones which are going to guide this board of enquiry.

And the same with section 8 but then if you look at these terms of

reference again, once can see that the terms of reference they bind the

employer that is the state or the President because then that is what he 15

wanted this board of enquiry to deal with and nothing else but he take

cognisance of the rights of the employee and when you look at the said

page of the terms of reference then now it tells us about the right of the

National Commissioner in terms of section 9 [1].

So to be present here, to be assisted by a legal representative, 20

to call witnesses and to have access to documents relevant to the

enquiry, it does not say anything about the evidence leaders because it

is clear that it is the National Commissioner who is being accused of

misconduct so she has the rights which are derived from the principle of

natural justice to a fair trial, to adduce evidence, to be present here and 25


to call whatever witnesses and so on. So now then the evidence leaders

want to transpose the rights which are conferred on the National

Commissioner that those rights then automatically then also apply to

them but with them they have made allegations they must prove those

allegations and whatever evidence that they bring it must be relevant 5

then to the terms of reference, if it is not relevant to that then we are,

then this enquiry will not accept it so it is as simple as that.

But what the evidence leaders did not do which now takes me

now to the fourth point is now the evidence that they say they want to

lead. Now the manner in which the evidence leaders have presented 10

their argument to you is that you must make your ruling in the abstract

that they are entitled to call witnesses but it cannot be, they must be able

to say that we have the evidence of the following people and this

evidence we are asking permission or a ruling from you whether we can

adduce that evidence because there is an objection to that so they are 15

not doing that. I mean we have agreed in one of these strategy

meetings that no witness will testify unless that witness has made a

statement under oath and Mr Jamie then has read that part of the

minutes.

So what was anticipated is that the evidence leaders were going 20

to give us statements of the witnesses who they want to call and those

statements would be under oath so that we can see what evidence this

witnesses are going to lead. We are not told of who then they are going

to call who has made a statement under oath and what is the relevance

of that evidence but I would like to do that myself because then that is 25


what this board has to consider when making its own ruling. What we

have been given so far we have given only four statements so what we

can safely assume is that when the evidence leaders talk of calling

witnesses they are talking of calling only four people and they cannot tell

us about other people today which they have never told us about on 5

which they have not given us their statements because they must give us

the statements of those people under oath.

So in their statement of case they tell us that if we do not accept

the evidence and the statement of Nhlanti at Marikana they want to call

Nhlanti, then they say that if we do not accept the statement of Mawena, 10

General Mawena, they would like to call General Mawena, if we do not, I

mean then they say that they also would like to call Advocate Geoff

Budlender SC.

JUDGE: Advocate who?

ADV MOKHARI: Geoff Budlender, they say they want to call him so that 15

he can testify about some consultation that he had with Mawena and

about the notes which he has taken then the fourth person that they say

they want to call they say they want to call Adrio who is in France so

those are the only four people that they have mentioned that they want

to call so why do they not say to this Commission that take for instance 20

here is a statement of Mawena we would like to call him, he has given

the statement, we have complied with the direction given by this board

that we must get his statement under oath, we have done that and here

is his statement and this statement is relevant because it accords well

with the terms of reference. 25


With Geoff Budlender as well why they say that they must come,

with Adrio as well they are not telling you anything so on what basis must

you be asked in the abstract to then say that they are entitled to call

witnesses. So the statements that they are talking about you will find

them ...[intervenes] 5

JUDGE: Are you suggesting that they are not entitled to call witnesses?

ADV MOKHARI: No I am not suggesting that they are not entitled to call

witnesses, I am saying that they must, well first they must have complied

with the agreement or the decision that was made here, they give us the

statements and then when we object to that that is the purpose of this 10

application now to say that ...[intervenes]

JUDGE: So they can call whoever they want to provided they comply

with the preliminary requirements to submit a statement under oath to

you of the particular witness they want to call and then when they call

the witness you will be entitled to object to the relevance of that witness? 15

ADV MOKHARI: That is right.

JUDGE: Is that what you are saying?

ADV MOKHARI: That is right yes, so what I am saying is that so then

they were supposed to have complied with that requirement and they

have not complied with that requirement. For instance we talk of the 20

statement of Adrio, in Adrio we have a statement from him, when you

look at that statement he came he was in Cape Town on 22 April, flown

all the way from France because then apparently then he is still working

for the South African Police Service but he has been seconded then to

Interpol and he is based in France. He is flown all the way from France 25


to South Africa come here on 22 April, he signs a statement and then he

leaves, he does not sign it under oath whereas then here it was very

clear that give us the statement then which of the witness will come then

under oath and then from there then we know that you have complied

and then we are able to take it on that basis. 5

And the relevance of that statement when he comes to testify

because we have objected then we will be able to object then to the

evidence of that witness on the basis of relevance. So we are not saying

that they are not entitled to call witnesses at all but we are saying that

the witnesses that they call must be able to assist this enquiry in relation 10

to the terms of reference and the relevance of it. So given that I mean

we are not even told about the relevance of any of the witnesses then

who are supposed to come then I will then assume that then those

people then when they come as long as they have complied with the

decision then they will be dealt with then on the basis of then the 15

relevance of their statements.

Just a moment Judge, so just to recap we say that on the first

point of whether are they entitled to call witnesses, I am saying just to

recap on the first point whether they are entitled then to call witnesses

then we say that that has already been a decision and then we have 20

stated the basis of the objection and that there must be compliance with

that. With regard to the second point, the second point is disposed of

Judge by this term of reference 2.5 on page 3, 2.5 in the middle of the

page, let us read this term of reference, it says,

“The overall testimony by the National Commissioner at the 25


Commission was in keeping with the office which she holds and the

discharge of her duties commensurate therewith”.

So the operative word there is the overall testimony by the

National Commissioner and then we underline here at the Commission

so it is very specific at the Commission. If the President wanted it to 5

extend beyond that, we are not told what was difficult in him doing it that

way in the statement that the evidence, I mean the President could have

simply said the overall testimony by the National Commissioner at the

Commission and as well as her subsequent conduct thereat, what is so

difficult in saying that. So the reason why that is not here is because 10

that is not what the President wanted this Commission to focus at.

I want to make it clear that we are not actually even suggesting

that what they are putting as a proposition in the statement of case when

they say that she misled the President in the representations is correct, it

is actually not even correct because you will be able to read the 15

representations and you will be able to see that there is no

misrepresentation or lying that you can find there but we are raising it as

a matter of law, as a matter of principle that we cannot say that they

must be allowed because the statement, the representations are

favourable to us, they are favourable to us we can demonstrate actually 20

that they are favourable to us but we are not seeking to get that benefit

in circumstances where we know that that will be operating outside the

scope of the term of reference.

So we submit that, so term 2.5 is very clear and you will

remember what Mr Jamie submitted to you was in respect of how terms 25


of reference 2.5 reads, he said that our interpretation is because he

concede that the literal reading of this is that it excludes any evidence

outside Marikana, it exclude it so why will this board be asked to read

into this term of reference words which are clearly not there so those are

submissions that both points then should not be allowed in respect of the 5

first one of course there is a right to it and subject to the relevance but in

respect of the second point we say that that must be dismissed outright,

thank you.

JUDGE: Mr Jamie it is now 12:30 would you like to respond now and

then we adjourn for lunch before we give a ruling, what would you like to 10

do?

ADV JAMIE: I am happy to proceed on that basis.

JUDGE: Well I think will you be able to finish before 13:00 with your

reply?

ADV JAMIE: Yes. 15

JUDGE: Alright please proceed with your reply and then we will adjourn

and then we will give the ruling after lunch.

ADV JAMIE: Thank you Judge. I am going to deal with it in the order

that the submissions were made but they do, because the submissions

covered both basis or both issues, it might be a bit disjointed. To begin 20

with the submission that we as evidence leaders and the members of the

board cannot amend the terms of reference, obviously this board and the

evidence leaders cannot amend the terms of reference but with respect

that is to misunderstand the argument, we have not suggested or

submitted that what we are referring to would constitute and amendment 25


of the terms of reference, the submission and this goes obviously to the

second point the proper ambit of 2.5, 2.5 the submissions must be

purposively interpreted and so as to enable this board properly to carry

out its function which is to conduct an enquiry mandated by the

President in terms of section 9 [1] of the Police Act to enquire not only to 5

allegations of misconduct by the National Commissioner but into her

fitness to hold office and her capacity for executing her official duties.

And that is a broad investigation, it is an investigation, one

cannot be unfit or rather let me put it the other way, you cannot be fit for

certain purposes and not fit for other purposes, you are either fit to be 10

National Commissioner or you are not, you either have the capacity to

carry out your functions efficiently and according to law or you do not.

You cannot divide it up in an artificial manner and say, and we submit,

we have made the submission to you how you should read the terms of

reference and in particular 2.5. The next submission I want to deal with 15

is the submission that the board must make a decision as to what or

sorry, the submission was that the board must decide and that came

after an exchange with you, you may recall, the board must decide for

itself what the terms of reference mean and we agree entirely with that,

the board must interpret the terms of reference that contradicts a 20

subsequent submission by Mr Mokhari that there is no question of

interpretation involved in construing the terms of reference, we submit

that can never be.

The terms of reference are a written instrument and any written

instrument has to be interpreted by those who must give effect thereto, 25


so that argument with respect is not correct. Then there was an

argument that was based members of the board on paragraph 3 of our

statement of claim or sorry statement of case and Mr Mokhari referred

there to a particular wording of that paragraph and in particular to the

statement in the paragraph that it is clear that this is not a general 5

enquiry into the fitness of the National Commissioner but it is confound

to the conduct of the National Commissioner in relation to the events of

Marikana and then the party relied on and her evidence in relation

thereto at the Farlam Commission.

Now you will recall Judge that elicited another response from 10

you where you pointed out to Mr Mokhari that a position and opinion,

particularly erroneous opinion on the part of the evidence leaders cannot

bind this board as to the ambit of your powers and that must be correct

and he conceded it. But just to put in context 3 does say what it says but

paragraph 7, four paragraphs later says the following, finally it is clear 15

and this is the concluding paragraph to this section of the submission,

“Finally if it is clear that the National Commissioners evidence

demonstrates a woefully inadequate appreciation of her role and of the

national security implications of the police ’s conduct in Marikana or if she

made herself guilty of misconduct in her interactions with the 20

Commission or the President then it must be concluded that it has been

demonstrated that she is not fit for office”.

So while there may be a contradiction between the two

paragraphs we submit the concluding paragraph makes it very clear

what our position is and that is the position we contend for this morning. 25


Then there was a submission that the President had a response and if

he considered that she lied to him he could have amended the terms of

reference, with respect the submissions that we make based on her

response to the President when seen in the light of her evidence at

Marikana and other material such as the po lice’s heads of argument at 5

Marikana which we refer to as well, that is a mosaic of evidentiary

material which we submit this board is entitled to if not obliged to look at

in reaching a conclusion in terms of section 9 [1].

And the President with the greatest respect has ...[inaudible] it

cannot, that is why he has appointed this board of enquiry to conduct an 10

enquiry which he obviously is not able to conduct himself so the

suggestion that he would have known or suspected that if it is indeed so

that the National Commissioner has been less than frank in her

responses to him that with respect that is a non-sequatar, the fact that he

had the representations does not mean he would have appreciated the 15

relevance thereof in the context of her evidence at Marikana which runs

to more than 600 pages I might add.

Then the next submission and it really is, yes I think it is a

submission that was made at the end, and with respect well let me first

deal with the position now adopted in relation to the calling of evidence, 20

the calling of witnesses, Mr Mokhari has now disavowed any position on

the part of General Phiyega that we as evidence leaders are not entitled

to call witnesses but if he does that then he must obviously disavow what

he has stated in paragraph 55 of the statement of response because let

me just read this to you again and it has got nothing to do with relevance 25


or with its reference to the, or with its connection to the terms of

reference, this is the position adopted by the National Commissioner in

writing in her response to this board of enquiry and I have read to you

already the passage that says we are entitled to call witnesses who

testified at Marikana but only to clarify their evidence, that is the first part 5

of para 55, this is the second part of paragraph 55,

“It is however impermissible for the evidence leaders to call

witnesses who were at all relevant times available to testify at the Farlam

Commission but were not called or to call witnesses who testified at the

Farlam Commission in order to bolster their evidence which they already 10

led at the Farlam Commission. Any attempt by the evidence leaders to

call the witnesses as they had alluded to in their statement of case will

be opposed”.

Now with respect and with reference to Mr Mokhari’s

submissions to you about what case they thought they were here to 15

meet, we in agreeing to these preliminary arguments understood this to

be the case we had to meet, there was no case made to us that you

have not given us statements under oath, there was no case made that

witness X, Y and Z are not relevant, there was not even a query and our

learned friends have the bundle of correspondence and if there is, if I am 20

wrong they will correct me, we are not aware of any query as to what is

the relevance of witnesses X, Y and Z.

And can I just explain this, when we were told that there are only

four witnesses we seemed to be at odds with each other here, the way

we prepared our case, rightly or wrongly, and if we have fallen foul of any 25


procedural aspects one of them was raised in conference earlier this

morning then that can be we submit addressed and in fact there was a

very sensible suggestion as to how Captain Adrio’s situation can be

addressed but the way we presented our case in the statement of case

was there is reference throughout the documents and it is not correct to 5

suggest that we have not indicated the relevance of each proposed

witness to a particular term of reference, as you will know from having

read our documents we make preliminary remarks then we deal we deal

with each of those terms of reference separately and in the course of

dealing with each of them we reference and we say this is what a 10

witness said or this person was not called, he is available if the National

Commissioner disputes it we will call the witness.

And that was done in order to not unnecessarily burden the

Commission with hearing evidence not to be disputed that is the only

reason it was given as, if you do dispute it we will call the witness 15

because it makes no sense to call witnesses to simply call them and say

did you make this statement and then there is no cross-examination, that

is a waste of everyone’s time so it was still the sensible manner to

proceed. But we had a list with cross references that my junior advocate

Kusevitsky has prepared of no less than 14 potential witnesses, in each 20

case reference to where to be found in the statement of case and in

each case you will recall or maybe not but if you do look at our statement

of case in every single case except for witnesses where no statements

were taken such as Advocate Budlender, in every single case we give

the reference of the exhibit, we give the exhibit number because 25


remember all these statements were handed in at the end of the Farlam

Commission as exhibits even though witnesses were not called.

And that is the reason why we deal with it in that manner so it is

not correct that there are only four witnesses and it is also not correct

that we have not explained the relevance, we have in our document and 5

again subject to any correction by my learned friend there is no dispute

or let me not overstate the position, in certain cases they say this

witness will be entirely irrelevant but the proper time to raise that

argument is when a witness is called unless we can by agreement agree

that the witness is irrelevant. This was never intended, this morning it is 10

now into this afternoon was never intended as an assessment of the

relevance of any particular witness because the objection was a broad

one not that witness X or witness Y is not relevant and I simply have

been caught by surprise that that argument was made, I was not

prepared to deal with that argument, but our submission is that we have 15

dealt with it in our statement of case and I am not going to repeat the

argument with regard to the second point we have made our submission.

JUDGE: Do you agree that the relevance of any witness that you call

will always be a matter for decision as the witnesses are called?

ADV JAMIE: That is the only time that you can hit, it is not meant to be, 20

and at the risk of repetition, the objection was as I read in paragraph 55

it was we will object to any of those witnesses being called, not individual

witnesses, to any of them being called because they were not called at

Farlam that is the objection and we have dealt with that we believe,

thank you Judge. 25


JUDGE: Thank you ladies and gentlemen we will now adjourn for lunch

until 14:00 and we will then hand down our ruling in regard to these two

preliminary points at 14:00 thank you.

HEARING ADJOURNS HEARING

RESUMES 5

SESSION 2

RULING

JUDGE: At the commencement of proceedings today this board of

enquiry was called upon to resolve two points in limine, these points

were recorded in a letter dated 28 April 2016 written by the attorneys 10

acting on behalf of the National Commissioner. The two preliminary

points are worded as follows,

1) Whether the evidence leaders are entitled to call

witnesses who did not testify at the Farlam

Commission of enquiry and 15

2) Whether the evidence leaders are entitled to rely on

evidence which occurred after the Farlam Commission

of enquiry had been concludes such as the

representations which were made by the National

Commissioner to the President. 20

Initially in the statement of defence prepared and filed by counci l

appearing on behalf of the National Commissioner, an attitude was

adopted that no further witnesses at all should be called to testify before

this Commission. In paragraph 55 the following is stated and I quote,


“It may however be that one of the parties requires a particular

witness to be called despite that that witness testified at the Farlam

Commission but the calling of such a witness should be limited to

clarification in respect of his or her evidence at the Farlam Commission

not the rehashing of the evidence he or she has already led. It is 5

however the impermissible for the evidence leaders to call witnesses

who were at all relevant times available to testify at the Farlam

Commission but were not called or to call witnesses who testified at the

Farlam Commission in order to bolster the evidence which they have

already led at the Farlam Commission bearing in mind that the terms of 10

reference are based on the findings of the Farlam Commission are not

on the inadequacies of the evidence that was before the Farlam

Commission. Any attempt by the evidence leaders to call the witnesses

as they have alluded to in their statement of case will be opposed”.

During argument this morning before us Mr Mokhari appearing 15

for the National Commissioner however adopted a different attitude

saying that the evidence leaders would be entitled to call witnesses, he

however limited their right to call witnesses to comply with certain

procedural requirements that was agreed to prior between the parties in

a strategy meeting that related to the question of whether the witnesses 20

had made statements under oath and whether these statements under

oath had been supplied to the legal team for the National Commissioner.

In my view the concession made by Mr Mokhari that the

evidence leaders would be entitled to call witnesses to testify is a correct

concession, it is now common cause that this enquiry is in the nature of 25


a disciplinary enquiry or a disciplinary hearing between an employer and

an employee. At such disciplinary hearings it is common cause that

witnesses could be called by the employer as well as the employee, it

would therefore be absurd to suggest that in this particular enquiry the

evidence leaders would not be entitled to call witnesses. 5

The witnesses however have to be relevant so the touchstone of

whether a witness should testify will be determined by the relevance of

that testimony. The relevance of such testimony obviously will be

determined by referring to the terms of reference of this particular

enquiry. The terms of reference as set out by the President are as 10

follows, it is stated in paragraph 2 of his schedule and it reads as follows,

“The board of enquiry shall enquire into whether,

2.1) The National Commissioner acting together with other leadership

of the South African Police Service or alone misled the

Commission by concealing that it had made the decision to 15

implement a tactical option taken at the National Management

Forum meeting on or about 15 August 2012.

2.2) The decision of the Commissioner to implement a tactical option

or she reasonably would have to have foreseen the tragic and

catastrophic consequences which ensued. 20

2.3) The remarks by the National Commissioner at the SAPS parade

on 17 August 2012 would have been understood to be an

unqualified endorsement of the police action and thereby having

the consequences of undermining, frustrating or otherwise

impeding the work of the Commission. 25


2.4) The report prepared by the National Commissioner for the

President of the Republic on 16 August 2012 and the media

statement subsequently issued on 17 August 2012 was

deliberately amended to conceal the fact that there was two

shooting incidents, scene 1 and scene 2, resulting in misleading 5

the public that all the deaths had occurred at scene 1 which

arose out of members of the SAPS having to defend themselves

from an advancing mass.

2.5) The overall testimony by the National Commissioner at the

Commission was in keeping with the office which she holds and 10

the discharge of her duties commensurate therewith”.

I need say nothing more regarding the first point raised by Mr

Jamie for the evidence leaders it would seem to us that the discussion

and the concession made by Mr Mokhari would result in the answer to

the first question to be that the evidence leaders would be entitled to call 15

witnesses but that that witnesses evidence will have to be tested at the

relevant time when they are called as to their relevance to the terms of

reference. Let me then deal with the second point and that is the point

whether the evidence leaders would be entitled to refer to instances ex

post facto the Farlam Commission where the National Commissioner is 20

concerned.

Mr Mokhari was at pains to argue that the proper interpretation

of the last terms of reference 2.5 indicate clearly that any reference to

subsequent conduct by the National Commissioner would be

inadmissible and beyond the terms of reference of this enquiry. However 25


in the statement of defence the council for the National Commissioner

itself admitted that the terms of reference in paragraph 2.5 is vague and

unsubstantiated. Paragraph 45 of the statement of defence the following

is said and I quote,

“The term of reference relating to the overall testimony by the 5

National Commissioner at the Commission being not in keeping with the

office she holds is vague and unsubstantiated. The evidence relied upon

is not identified nor is it explained how she could have made herself

guilty of misconduct by virtue of the evidence that she gave at the

Farlam Commission of enquiry”. 10

It stands to reason that the representations made to the

President by the National Commissioner after the Farlam Commission

had completed is relevant in the sense that in those representations she

sought to explain her conduct and her evidence and the evidence that

was led at the Commission in order to establish her absence of any guilt. 15

In doing so in that particular representation to the President she

therefore incorporated her conduct at the hearing before the Farlam

Commission. It would therefore be absurd to suggest that her

statements in that representation is of no consequence and irrelevant to

these proceedings. 20

Her explanation to the President related to her very conduct at

the hearing of the Farlam Commission and in our view therefore is

relevant for the decision that has to be made by this board of enquiry.

We are therefore of the view that the evidence leaders would also be

entitled to refer to such conduct after the conclusion of the Farlam 25


Commission which has a direct relationship with her conduct at the

hearing of the Farlam Commission itself. It goes without saying if she

was to testify at this board of enquiry concerning her conduct at the

Farlam Commission which flies in the face of any subsequent conduct

when she explained her conduct that that would be relevant to consider 5

her creditworthiness and her fitness to hold office.

For those reasons we are therefore of the view that in regard to

the second point the answer must be in the affirmative that the evidence

leaders would be entitled to refer in this board of enquiry to matters

which occurred ex post facto but have a direct relationship to what 10

occurred during the Farlam Commission. In conclusion it may just be

said that anything positive or negative that occurred in the conduct of the

National Commissioner post the Farlam Commission which is entirely

irrelevant to that Commission would not be permitted in this board of

enquiry, there must be a direct relationship between such conduct ex 15

post facto to the actual hearing and her conduct during the hearing and

for that reason we make a finding or a ruling in regard to the second

point that the evidence leaders would be entitled to refer thereto.

ADV JAMIE: As the court pleases.

ADV MOKHARI: Thank you Chairperson. 20

JUDGE: Thank you. Now that we have made that ruling Mr Jamie what

is the next step?

ADV JAMIE: Judge the next step was we have lined up a witness for

today just avant dante and the witness is present, it is and I am sorry I

am informed that you should have each of you a document titled 25


Evidence Leaders Bundle.

JUDGE: Yes.

ADV JAMIE: That has been put on ...[intervenes]

JUDGE: Yes there is a big bundle to that effect ja.

ADV JAMIE: Yes. 5

JUDGE: Is this the bundle you are referring to?

ADV JAMIE: Yes.

JUDGE: Yes thank you.

ADV JAMIE: A copy has been given to our colleagues, could I ask that

this be labelled exhibit B? 10

JUDGE: This will then be exhibit B.

ADV JAMIE: As the court pleases. Judge what this document is, is a

compilation of statements and in some case affidavits together with

associated documentation and in most cases you would see that there is

an exhibit number which is provided and that would be a reference to the 15

Farlam Commission exhibit numbers and the purpose of this is to act as

a guide of the statements or affidavits together with the other

documentation we will rely upon in leading these witnesses whom we do

elect to call and the witness we have at the moment is Mr Pilane

Hlaranyane who is number 8, the first witness on the second page, he is 20

present but his first language and sorry just to orientate you, you will find

his statement at paginated page 69 of this bundle.

JUDGE: Yes we see that.

ADV JAMIE: And it is difficult to read because it has been copied


repeatedly I think.

JUDGE: Well it is not only difficult it is almost illegible Mr Jamie.

ADV JAMIE: That is why what we intend doing is having Mr Hlaranyane

read this into the record and then to deal with his evidence that flows

there from ...[intervenes] 5

JUDGE: With respect, I am sorry to interrupt you, that would not be

sufficient, you will have to ask somebody to retype this I typed form

because down the line if we have to refer to it again in two, three or four

weeks time we may not be able to recall exactly what was written here.

ADV JAMIE: No, no, no I beg your pardon, I beg your pardon Judge we 10

will and in some cases already it has been done, the handwritten

documents have been transcribed.

JUDGE: Yes please.

ADV JAMIE: So we will certainly provide a transcript but perhaps it

would be better to do that once he has read it into the record but he has 15

requested once we explained the situation to him and his first language

is Tswana.

JUDGE: Is what?

ADV JAMIE: Tswana.

JUDGE: Oh Tswana speaking. 20

ADV JAMIE: And although he seems obviously he is, he has written this

in English, he would prefer to give his evidence through an interpreter

and we do not have one available this afternoon.

JUDGE: Well how do you propose to solve that problem Mr Jamie?


ADV JAMIE: We propose to, we do not have any other witness for today

Judge so we propose to, I have asked my attorney and the secretariat

between them to arrange for an interpreter.

JUDGE: Alright.

ADV JAMIE: And we intend to call him later this week with your leave. 5

JUDGE: Are you suggesting that we then adjourn until tomorrow

morning at 10:00 for this witness interpreter to be obtained and to be

ready to proceed at 10:00 tomorrow morning, is that what you are

suggesting or not?

ADV JAMIE: Not as precisely as that Judge because I do not have 10

control over the interpreter services that are available.

JUDGE: Where were you thinking of obtaining the services of an

interpreter?

ADV JAMIE: Via the secretariat or my attorney.

JUDGE: Ja alright. 15

ADV JAMIE: I personally do not arrange interpreters Judge.

JUDGE: Ja well I appreciate that, coming from Cape Town you do not

know all the interpreters here do you?

ADV JAMIE: I do not, I do not Judge so I would like the, we do have

witnesses for this week but they are not always going to flow seamlessly 20

from one to the other Judge.

JUDGE: Subject to what Mr Mokhari has to say, if we were to adjourn to

tomorrow morning then would that not allow you ample time for your

attorney or somebody else to transcribe these statements at least this


first one that you wish.

ADV JAMIE: We certainly can have this one transcribed.

JUDGE: Ja.

ADV JAMIE: Yes.

JUDGE: And later on the others then as well. 5

ADV JAMIE: Any statement in this bundle that is not been transcribed

we will transcribe.

JUDGE: Thank you. Right Mr Mokhari.

ADV MOKHARI: Chairperson we have no objection as long as then the

stand down is to tomorrow morning and insofar as obtaining the services 10

of interpretation is concerned then they should be able to get assistance

from the office of the State Attorney and we also have the Director of

Public Prosecutions the interpreters from court, it is not a difficult thing

especially given that Tswana is a language that is quite well spoken in

this area, it should never be a problem so it will cause no problem if we 15

stand down to tomorrow morning at 10:00.

JUDGE: Thank you. Anything further you wish to say Mr Jamie?

ADV JAMIE: Mr Hlaranyane is certainly available tomorrow morning and

subject to what Mr Mokhari has said if the interpreter is available

tomorrow we will start with him at 10:00. 20

JUDGE: Well then I think we shall initially adjourn until 10:00 tomorrow

morning in the hope that you are ready to proceed then, if not then I

think you should explain to us what the problems are with obtaining the

services of an interpreter, will you do that?


ADV JAMIE: I certainly will Judge.

ADV MOKHARI: And what we also suggest Chairperson is that the

evidence leaders shall not rely on one witness only because they have

had an opportunity for eight months to line up their witnesses so if then

he cannot put this witness first he must put another witness tomorrow so 5

it cannot be a reason for that because they have had eight months then

to do that and especially given that we have not been given even the list

of the witnesses and chronology by which they are going to be called so

if then they can also do that this afternoon and give it to us then we know

that who is the next witness and so on, we are able to prepare 10

accordingly, thank you.

ADV JAMIE: Judge as I have indicated the availability of witnesses and

the practical difficulties in arranging them, putting them on standby

should not be underestimated, we are operating from Cape Town and it

is not an excuse but it is an explanation, we are divorced from the 15

situation here. Until you made your ruling the position was we were not

entitled to call any witnesses whatsoever and that must be factored into

the situation as also the attempts between the parties which you were

appraised of this morning to actually remove the need to call witnesses

by agreement as in the one with regard to Captain Adrio that you heard 20

this morning, so it is not that simple to simply have all these persons

lined up, at least one of the witnesses Captain Moolman has family

matters that have taken her to Cape Town and we were told that and we

advised the secretary of that timeously that she would only be available

on the 9th so those are the, we are operating under various constraints 25


but subject to all of that we have no desire to string this out Judge, we

will attempt to have the witnesses that we decide we do want to call in

light of your ruling as conveniently lined up as possible that I can give

you my personal undertaking.

JUDGE: Would it serve any further purpose for the two legal teams to 5

meet in regard to what witnesses are going to be called to arrive at some

kind of an agreement in regard thereto or would that serve no purpose at

this stage?

ADV JAMIE: Could I respond first Judge?

JUDGE: Yes. 10

ADV JAMIE: You would know that I think very reasonably Advocate

Mokhari was amenable and that request was conveyed to you via the

secretariat and it had the in promata both of us that we were, we thought

it would make sense precisely to get all of these practical difficulties out

of the way to possibly have this ruling today or this argument and then a 15

ruling as you have given today and then stand down to next week to

have all the witnesses lined up, that was turned down so under the

circumstances we are sort of trying to as it were, we have to engineer

the situation to have the witnesses here in light of the ruling.

JUDGE: Well I think the response by Mr Mokhari will be you had eight 20

months.

ADV MOKHARI: Yes.

ADV JAMIE: We have had since 15 minutes ago Judge.

ADV MOKHARI: In fact Judge what I would like to propose is that the


evidence leaders should make sure that from the 14 witnesses that they

have this enquiry does not stop at any moment, they should make it the

point that they have their witnesses here, if this one is not available at a

particular time then they must have another one ready and the question

of Cape Town does not even arise because the evidence leaders are 5

instructed by the State Attorney Pretoria and they are relying on the

State Attorney Pretoria they are not the ones who are running around

looking for witnesses so that cannot be used as an excuse, this enquiry

has waited for too long, for eight months they have had that opportunity

so if they can ensure that they ensure that this enquiry it runs smoothly 10

without interruptions that they are suggesting.

But insofar as the parties talking we will continue talking in

respect of those witnesses that may not be necessary to be called but

the impediment here is that we have not been given the witnesses that

they are calling so that is why I am saying that if they can give us the list 15

of the witnesses that they want to call by this afternoon we will be able to

sift through and look at the statements and see whether this witness is

necessary for him or her to come, they have not given us that, if they can

do that this afternoon then of course then some of the witnesses may fall

away. 20

JUDGE: Will you be able to comply with that request Advocate Jamie.

ADV JAMIE: Well it sounds like a demand but we have already complied

with, not complied we have already done what is being requested

because they were given the witness bundle and that lists the 14

witnesses together with their statements and any other additional, it is 25


the same document you have got Judge so they have ...[intervenes]

JUDGE: This bundle that you have given to us just now.

ADV JAMIE: Yes but all that that is with respect is it is in order to assist,

we are not obliged to provide a document like that because that

document Judge comes ...[intervenes] 5

JUDGE: Exhibit B?

ADV JAMIE: Exhibit B is a direct extract or at least compilation of what

is said in our statement of case.

JUDGE: Ja.

ADV JAMIE: And the statement of case says who we are going to call 10

depending on what their reaction is so they have known throughout who

the likely witnesses are subject always to agreement and we have now

gone one step further and given them that document which actually

takes out alright the relevant exhibits and puts it in their hands in one

document so I do not know how it can be suggested that we have not 15

given them that.

JUDGE: Let me just interrupt you there Mr Jamie, I mean you have here

something like I do not know how many witnesses ...[intervenes]

ADV MOKHARI: Well.

JUDGE: I am still of the view that neither the board nor Mr Mokhari 20

knows exactly whether you want to call all of these witnesses or only

some and if you wanted to call only some then tell us which are those

that you are intending to call?

ADV JAMIE: We certainly will do that Judge and subject to any


agreement as I indicated from the outset.

JUDGE: I think this afternoon should be then used to sort out these

preliminary housekeeping issues with regard to the witnesses and I

would ask both council to cooperate in this regard and for the sake of the

brevity of the entire board of enquiry to come to some agreement in that 5

regard.

ADV MOKHARI: Chairperson thank you very much. I understand the

ruling that you have made today not to be exonerating the evidence

leaders from complying with the agreement which is contained in the

minutes that when they call that witness they must show you that they 10

have complied with that, they have given us that statement, it is a

statement under oath and then from there we can test the relevance of

that evidence, this bundle which has been referred to you which has

been extracted from some of the documents in the bigger bundle which

then we have just been given just now then, I mean two minutes before 15

you started handing down your ruling today, then if you can just flip

through it the first page is a handwritten statement and then when we

look at it at the end then we look at the next statement some are

commissioned some are not commissioned so they know that they must

make sure that in respect of those who are coming to testify they must 20

show us that they have given us a statement which is commissioned,

they cannot give us statements which are not commissioned and say

that they have complied so that is all what I was saying.

But then in respect of ironing out other things, as soon as they

give us the list of who they want to call then we will be able to know the 25


statements of those people and we will look at them and we will be able

to engage whether it is necessary for that person to be called or not, it is

just as simple as that.

ADV JAMIE: I am sure we can resolve this, this afternoon.

JUDGE: I think let us terminate the discussion now, I wish to prevail on 5

both council to be reasonable in these circumstances and to assist the

board of enquiry in trying to terminate the length of this enquiry as best

you can okay.

ADV MOKHARI: Thank you Chairperson.

JUDGE: Thank you then we will adjourn until 10:00 tomorrow morning. 10

HEARING ADJOURNS TO 4 MAY 2016

15

20

TRANSCRIBER’S CERTIFICATE

Hereby is certified that insofar as it is audible the aforegoing is a true and just transcription of

the proceedings which is mechanically recorded.

DAY 1

CLAASSEN ENQUIRY

CASE NO: Claassen Enquiry

RECORDED AT Centurion Pretoria

TRANSCRIBER C Dias

DATE COMPLETED 03-05-2016

NO AUDIO FILES 2 [Sessions]

NUMBER OF PAGES 63

This is to certify that the following problems were experienced with the above matter: 1. This is a verbatim transcript. 2. Due to the fact that this is a true reflection of the record, and it is

transcribed as heard, grammatical errors may occur because of the way role players speak throughout.

3. Where names, places, esoteric terms etc are unknown they are spelt phonetically.

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date: 03-05-2016 day 1 claassen enquiry held at: law … · claassen enquiry 2 riah phiyega...

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