Adv Sello & Madlanga Commissioners School Adv Dali Mpofu while he defends General Senona.

[00:00:00]Yes, Commissioner.

[00:00:00]>> Now, during the storage of these drugs uh and in your presence, there was no compliance with that that they be entered into SAP 13. which SAP 13 commissioner >> as contemplated in 122A where they've been transferred to >> 122A commissioners when the exhibits were ceased they were booked at Epipingo they were booked at ispingo and booked out immediately.

[00:00:40]>> Yes.

[00:00:40]>> Yeah. So for me that is compliance at the relevant police station >> but then they were subsequently transferred to offices.

[00:00:50]>> Yes. And then hence I I said I'm unable to answer the question commissioner was asking me in that when guarantee came to sign for the case the exhibits were backed and booked at SAP 13 at portch. I think I want to leave it there.

[00:01:15]>> My my question really was you are aware of the contents of 122A.

[00:01:20]your way. They are standard regarding handling of exhibits whether they it arises from in this instruction or another. That is how it happens. They are transferred from Isipingo to Port Shepton. They exit the SAP 13 inpipingo.

[00:01:37]When they get to Port Sheps, they have to be recorded in an SAP 13 register.

[00:01:41]You are aware of that requirement at the very least.

[00:01:45]>> At the at the very least I am aware.

[00:01:48]Okay, >> I have already indicated that I don't want to respond too much here as a result of these investigations that I'm being bombarded with >> because they they use this commission to bring me disciplinary cases. Okay. So, uh would it be fair to to conclude then that that particular prescript was flouted which now we know you are aware of you have confirmed was flouted in your presence.

[00:02:20]>> You were there.

[00:02:22]>> Say that again.

[00:02:23]>> I am unable to answer that.

[00:02:25]>> You are unable to answer.

[00:02:26]>> Correct. Commissioners, >> which part of the question is creating difficulty? The one you asked me commissioner >> I think miss it it is I think properly construed he refuses to answer the question. Can we proceed on that basis?

[00:02:41]>> Should I do we accept commissioner Baloy's uh suggestion that you refuse to answer the question?

[00:02:54]>> Yes Mr. Bo.

[00:02:55]>> Yes chair. Maybe to save the time of the commission so that we don't go through this painfully again.

[00:03:03]This witness if he feels that there's a a question put to him whose only value is to expose him to a disciplinary action but has nothing to do with the mandate of the commission in his view then he he will be uncomfortable to answer that. so that it doesn't have to do it again and again and annoy commissioner Kumalo by referring to so much to the HR threats. I think he this point has been made I don't know how many times now.

[00:03:40]>> No Jay it has not been made.

[00:03:43]>> Can I just finish please? Yeah.

[00:03:46]So and and the point which at least let me not speak for the witness let me speak for myself. The point that I made in the morning was was that uh and I gave examples the and that's what we were talking about that unit. Our view is that there are two units. There's one sitting somewhere at HR, one sitting at the police that is watching this proceedings ready to pounce as they did in January uh with all sorts of trumped up and speurious uh charges. So if if if this exercise is to show that um general is a bad manager or whatever then we we we accept that criticism but we're not going to go into specifics about as I said in the morning my new share if I may take advantage of this chair just to make a wild example at some stage in my life I was the CEO of the SABC. But if you ask me what happened in the Northwest office or whatever, I've never even been there. Um, or how to hold a camera and somebody held it upside down, you know. So, but I don't want to go to issues of management and organizational design. The the issue is that the general is saying that he takes responsibility as the head but he can be asked about did this one open this key or whatever and and at that level if you are a manager you rely on people you can't it doesn't mean if you're a co you must know what's happening in the technology department in the accounting department in this and this at the level of of of of that detail But I as I say I just I don't want to maybe stifle the the questioning but it with the greatest respect it's not clear what needs to be achieved in relation to the terms of reference.

[00:05:53]>> May I clarify with your lift chair? May >> may I just ask a question? Um does uh the fact that with regard to uh this and in particular the storage um does the fact that the general had taken uh a particular interest in this and even went to to to Port Shepston himself even took over the keys. Does that not distinguish it for example from your situation? Yes.

[00:06:27]>> Uh at the SA SABC of not necessarily knowing what is happening >> at at Northwest office of the ABC.

[00:06:38]>> Thank you chair. It may or may not but I'm making a different point.

[00:06:43]The the point is that to what end in relation to the terms of reference the general says he was there. Uh, Commissioner Baloy explains, "Well, I think it was Commo or Commissioner Kumalo. All right, you might not know everything, but on this occasion, you were there. You actually saw it happening." And he says, "Yes, I did.

[00:07:04]Maybe I made a mistake. What more must he say?"

[00:07:08]Now, in hindsight, he he knows he should probably should have said, "Why are these things not being did not do it?"

[00:07:16]How does that assist us to to say, "Okay, you should have done it." Then we can be here all day saying yeah I should have pegged them. No I didn't beg them.

[00:07:24]No. So for for what particular purpose >> commissioner >> apart from exposing him to uh somebody who's going to say ah you were there you actually uh saw all these transgressions now we're going to pounce on you. What other purpose can it possibly serve?

[00:07:43]Commissioner Valoy, of course, I'm paraphrasing, also made the point that here we have what I would refer to as a comedy of errors/ inadvertence or whatever one may call it from the beginning all the way to the end. And uh that uh one wants to inquire into whether these were not already setting up a scene for the theft.

[00:08:15]>> Agreed.

[00:08:16]>> Which is why as Commissioner Baloya I think then asked um or rather said we should therefore enquire into all these errors. It may be errors or errors in quotation marks so as to have a full picture as to what exactly happened and why.

[00:08:39]>> Yes, >> that will help either exclude any wrongdoing on the part of uh whoever the role players were or not exclude wrongdoing.

[00:08:53]So you in fact it calls to mind a judgment by justice frontman which I'm sure you are well aware of the judgment of all pay >> in the context of procurement.

[00:09:07]>> Judge Justice Ronan said there may be something that looks like mere inadvertence in terms of taking the the the required steps.

[00:09:19]You have to inquire into that because it may look like inadvertence when in fact it was an inadvertent step taken deliberately in order to cover for example fraud in the procurement process. So sometimes the these inquiries you know may be necessary in that context. And you yourself in the morning when you addressed you said that yes there may be HR issues and there may be issues that fall under the commission's terms of reference but and this is what is important in what you said but there are no bright lines >> of course.

[00:10:00]>> Yes.

[00:10:01]>> Thank you ch there's nothing more to say. That's exactly why Commissioner Baloy quoted me. I what you've just told me is what I I said to this commission in the morning. We're not saying don't don't ask about uh the incompetence because who knows maybe the incompetence was deliberate but really to to go on for the whole day about whether this thing was put in a bag or not. It was not put in the bag. It was wrong. Should have been put in the bag. Can we move on then? You know >> well the the answer of the witness Mr. Bofu is he refuses to answer the question had to be put to him whether he saw he saw that these things were not in the bag. The question is and I and I must I must say it's a fair question to ask in the circumstances.

[00:10:52]Um I've respected for present purposes the way he's chosen to respond. But the I think for me the more important point that I would have made that I wanted to make was and it's a pity it comes late in the day because of how he's responded now it's it's for the commission ultimately to determine whether the evidence that we have gathered does it fall within the terms of reference or not. So I think it it's an artificial way to try to even for the witness himself to say well that has nothing to do with your terms of reference. Um I expect you will agree mu that ultimately the commission is going to have to look at the entire record.

[00:11:37]Some questions we will find or some answers and some conversations we are for sure going to find. This is doesn't deal with our terms of reference but it had to be canvased because we were looking at trying to see what does it tell us.

[00:11:51]>> Yes.

[00:11:54]May I respond? Thank you chair. No no I I think we're on the same page um as as far as that's concerned. I'm only all I'm doing really. I'm here to protect the interests of this client. I'm simply saying when if and when he says to Miss Zillow, I I'm uncomfortable answering that question about the bags or whatever because it might expose me to uh something else. All I'm saying is to put that into context so that the commission doesn't read something else into that to think maybe that's because he stole the drugs or whatever. All he's explaining the reason why he's doing this in America. It's called taking the fifth amendment. Right? He is saying I'm uncomfortable in answering that question because it's going to expose me to something else. Honestly, that's all he that's all I'm saying. You can say from someone taking the fifth, oh, that means he's guilty. That's fine. Someone can say that. Or you can say he's protecting himself from uh further jeopardy. That's up to the commission. But I'm I'm just putting that into perspective.

[00:13:08]>> Just to to to con to conclude this, Mr. BFU, it's actually something I thought of as the as as the general was responding quite early on. I forgot to raise it when I was engaging you. Um in the context for example of uh there being criminal proceedings in the in the background a witness uh may say I will not answer uh for fear of selfinccrimination which is understandable under section 35 of the of the constitution in this context.

[00:13:46]What what what would assuming assuming that the the question is relevant to the terms of reference. I want us to to avoid the question but this one is not.

[00:13:57]I just as a matter of principle want to understand the legal basis for a witness where they are pending disciplinary process what the basis for remaining silent would be.

[00:14:13]>> Thank you chair. That's a very >> I'm not I'm not saying there isn't.

[00:14:17]>> No, no, no. I'm I'm I'm not taking it that way either. I I I think we're we're all trying to to explore the same thing.

[00:14:25]Chapen, as you know, the first one to say that's why I said in the morning, I'm not raising this at a technical level. It's true that section 35 doesn't apply to this to this situation. To you and me, that might make a difference. But we must put ourselves in the shoes of people.

[00:14:47]Whether I'm exposed to criminal prosecution or I'm exposed to being uh fired at work, it might make zero difference to me. I I'll just leave it at that. So the the you know, it's nice the lawyering about uh okay, does this does it now mean self-inccrimination for the purposes of prosecution? It's all very nice uh academic debate. But if you think that when I leave here on Monday, I might be faced with a a something that's going to take food from my children, then quite frankly, it's the same effect as to whether or not you should expose yourself to this danger or that one.

[00:15:26]>> I get the effect. I get the effect. And my reference to section 35 of the constitution um sought merely to to emphasize the difference or the distinction. Yes, that was merely so the point of substance was more in this context. What is the legal basis for saying I I I I choose not to respond to to this question and and I I I have not had a direct answer from you.

[00:15:59]I get and I accept your point about the effect may actually be the same.

[00:16:04]Sometimes it may actually even be worse to lose your employment. I get that.

[00:16:09]>> So So just as a matter of law then what would the basis be? Well, as a matter of law, there might be zero basis chair, but as a matter of real life, whether you expose yourself to the in other words, chair, all all I'm saying to you, chair, is in real life, whether I'm exposing myself to some policeman coming into my house at on Monday or some supervisor at work coming to my office on Monday. In real life, that's that's the same thing. in in law and in the philosophies of criminal law and criminal procedure, the they there's a big difference. That's why there's a difference between section 35 and section 34 of the constitution because they they address different situations.

[00:16:57]But those are both nicities of professorial uh rectitude.

[00:17:32]Uh, check.

[00:17:36]>> Uh, perhaps something that uh we we must place on record so that uh I'm I'm sure you are aware of it Mr. Moffu but the general should also be aware of it. Um general there's also I think it's section six of the the commission's act.

[00:17:58]It's section section six of the commissions act.

[00:18:04]uh the act itself. Yes. Um which requires of witnesses to answer questions satisfactoriily fully and satisfactoryily.

[00:18:19]Um if there is no legal basis and in this instance I'm not aware of any. I'm not saying there's none, but uh as presently advised, I'm not I'm not aware of any. So, I thought in fairness to you, I should bring the provisions of section six to your attention.

[00:18:43]Um and they go so far, it's not just requiring answering fully and satisfactoryy.

[00:18:50]It's a this failure to do so is on pain off facing criminal proceedings. So I thought I should just bring that to your attention. Uh not only you but in case others who are listening and who may come to testify before the commission and who also happen to have uh disciplinary proceedings pending may think if we do not raise this then it's the way out for for everyone. I have um disciplinary proceedings pending and therefore I am not going to respond to this question. I I do take uh Mr. Bofu's point about uh issues that are or are not uh within or the terms of reference of the of the commission. um where an issue is raised around that.

[00:19:54]Um we can engage before of course as Commissioner Baloy said we as the commissioners take a decision because it falls upon us to do so. We can of course engage council where there is council or the witness themselves where the witness is not represented. We can engage on that. Does this fall with within the terms of reference or does it not? And therefore on that basis if we agree once the witness or council has raised the point and we agree upon engagement that indeed it doesn't we may not force or push the witness to respond to that kind of question. But it can never be on the basis that there are pending disciplinary proceedings and therefore I am quote unquote uncomfortable to respond to that question. It can never be on that basis.

[00:20:52]Um, I've not given Miss Law an opportunity to respond.

[00:20:58]>> Um, >> or before or perhaps before she responds to, do you want to to respond to the observations I've just made, Mr. >> So that she can respond to?

[00:21:05]>> So, yes. Yes.

[00:21:06]>> Yes. Chair. Well, this thing is is growing uh to be uh even worse than I suspected.

[00:21:16]I thought and which I was trying to prevent. Um, Commissioner Baloy was rightfully saying to to the witness, you you then have to understand if you are uncomfortable, you're uncomfortable, but uh the commission will take that into account and that's I can't quibble with that. He he he has to weigh which risks to do whether to offend to whether to annoy the uh advocate or or to or to to to lose his job. That's that that's his uncomfortable choices. I accept that. But now from what the chair is saying now with the reference to section six of the act that's a completely different kettle of fish because that means now he's exposing himself to criminal uh prosecution. Well that if if that is the attitude or or the jeopardy >> no may may I come in? May I come in Mr. Bou >> please? Um all I'm saying is uh in fact I accepted a point that you made which is that if the question raises issues that have nothing to do with the terms of reference of the commission then what I'm saying will never arise. There can never be >> okay >> a question of the application or applicability of section six.

[00:22:46]>> Do you get me?

[00:22:47]>> I understand and I agree >> and and and I'm not being question specific on this. I'm stating it generally and I just want the the the general to be aware that there is such a provision. Then the question of how to respond to a particular question in the context of what falls within and what does not fall within the terms of reference is an issue that there may then be an engagement >> some legal debate. No chair, I I I accept that holistically and I do sympathize with the the remarks you made, chair, that you don't want to open the floodgates for rogue people to come here. Every time you ask a question, they say, "Well, I've got some disciplinary that I accept. I was just putting it in the context of this specific witness and what he he said in the morning." But I I I accept.

[00:23:42]>> No, thank you. Thank you, Mr. B. Yes, Mr. >> Thank you, Chair.

[00:23:48]uh a a number of issues have been raised. I'll start with the simplest.

[00:23:57]When we started, we dealt with the seizure of the drugs at the at the harbor.

[00:24:03]Um and through we were to go to their entry into the SAP 13 register at Pingle.

[00:24:17]An offer a suggestion was made that gen the general accepts every concession made by those who were responsible for that that decision.

[00:24:32]And I needed to clarify that with uh the general and he so confirmed. I accepted that on the basis that he was not present. He he cannot comment on what went down. He will live with the concessions made.

[00:24:48]I then shifted to Port Shepton where he was present. Now these are two different scenarios and it cannot be that he cannot be questioned about flouting of prescriptions of in his presence. He was aware. It is different from what happened at the harbor, what happened at isipingo because he was not present. And that distinction is an important one to hold. The conversation we have had over the past uh so many minutes is about his presence at Port Shepton his approvals at know maybe not approvals but his failure to act when prescripts are flouted that he can respond to and it it is not enough for Mr. Mafu to call it minutia. There are series of questions of what we consider flouting of prescripts in his presence that at the very least must be put each question to General Cona and there is no basis for Mr. Puer to stop that exercise. The question will be put what arises is how General Sona responds there too.

[00:26:06]I was going to deal with the provisions of the act and the fact that actually the witness is under compulsion to respond to every question put to him in the commission and answer to the satisfaction of the commissioners um at at the risk of of uh inviting consequences to him. I will add that the the act specifically protects a witness from answering where he invokes legal privilege and I I submit that in the absence of legal privilege then the witness must answer that >> self selfinccrimination. Yes, it's I'm getting to self-inccrimination and the self-inccrimination is to every question then the witness must go on record and invoke the privilege not to selfinccriminate.

[00:27:04]What Mr. PFU wants to achieve is that certain questions not be put at all because they may selfinccriminate but we don't know which questions will self the answers to which will selfinccriminate which will not. He must be patient enough for the commission to go through the question the questions and the witness will respond accordingly. We have had a case where a witness I think spent almost the entire half a morning refusing to answer on the basis of self inrim potential self-inccrimination and that went on record and that was accepted and if that is how the system works then general sona must go through the same process. Now it cannot >> the context though was different there because it it it it related to uh criminal proceedings or a criminal process >> uh here I've not heard that which is why which is why I was engaging at the level outside of a criminal process what would the legal basis be so now you are bringing the general into the fold of a criminal process which which I do not think he has claimed.

[00:28:15]>> I am I'm not doing so ch I am raising the issue of privilege which is this protection in terms of the act and uh that he he cannot be expected to to selfinccriminate is one of the privileges accorded him by law. So that one is in the bag. Now what is being raised does not fall within the confines of the pre privilege as contemplated by the act which is that he may face uh potential disciplinary proceedings on the basis of answers he gives. That is a different debate whether or not that complies with his compulsion to answer every question satisfactoryy but that's a different debate we can have. The issue I was raising and I was taking issue is issue with mainly is that the questions should not even be posed and to offer the witness an opportunity to engage and deal and respond there too. And that is what I I'm objecting to. Mr. Poffu cannot appear or attempt to appear to gag the evidence leaders and the commissioners because it's a factf finding inquiry.

[00:29:19]The questions will be posed, answers will be provided at the conclusion of which the commissioners will reach certain con you know their own determinations.

[00:29:29]>> Thank you. Can I read for both of you regulation 8 sub one of this commission's regulations?

[00:29:39]The heading is persons appearing before the commission. And then subreg one says no person appearing before the commission may refuse to answer any question on any grounds other than those contemplated in section 3 sub4 of the commission's act.

[00:29:59]I I confirmed commissioner and a reading of >> a reading of section three of the act is the the section that intro in introduces legal privilege.

[00:30:20]Yes, yes, >> can I just assist really?

[00:30:26]Thank you, Mr. Chair. Really, this thing is going out of control. Uh, this is a simple intervention. I don't know about gagging or stopping questions or whatever when there if where that happened is is not in my imagination.

[00:30:43]There's no question that we're gagging.

[00:30:45]All I said to provoke all of this past hour is I want to put into perspective the reasons why he is uncomfortable with answering certain questions which I had understood and I accepted Commissioner Baloy's uh uh summation of that that look when we we we're not going to put a gun in your head if you're uncomfortable but there might be um when the evidence is being assessed there might be consequences. That's what happens with every witness that I accept. I don't know about the the gagging and all the story this drama but the the the issue chair I I can I can uh maybe cail this if without even an agendment can I just approach the general and I I'll come back and and cail this whole thing.

[00:31:44]Let let us sorry m we'll take a five minute in the meantime let's journal.