Heated debate between Adv Dali Mpofu and Adv Sello in the Madlanga Commission of Inquiry

[00:00:01]Uh thank you very much uh advocates and um chairperson and commissioners.

[00:00:11]Yes, mine is not going to be a long chair. My remmit is is really to place on the record um certain uh concerns, shall we say, uh which have been expressed by the general which we wanted to put up front and um so that the his evidence could be seen in context because the these are issues that may arise from time to time or which might um hamper the flow of his um of his evidence.

[00:00:50]Um and we would like those issues. I've been specifically uh instructed to put them on the record for consideration by this forum or any other forum uh should it become ever relevant. Uh and so that we're not accused of raising those issues at a particular time. maybe because there are certain adverse findings or something. These are concerns that we raise even if they will be favorable or neutral or adverse um uh findings.

[00:01:28]uh chair what I will do is um so that we don't waste time I'll just really do a high level presentation of these of these issues. If uh the commission would like us to present later a more detailed um outline of the same issues then we will be happy to do so but for now I I don't want to get into much the minutia but the the first issue chair is um the maybe I should just say that the general heading really of all what I'm saying is concern concerns regarding what the general feels have been has been unfair treatment by the commission. Um and that is on the basis that the commission is enjoined to to treat witnesses and everyone u uh fairly and I I think that's common cause.

[00:02:31]Nobody can quibble with that. So the first of those um topics then is the serial refusal by the commission to furnish information upon request.

[00:02:47]And again we are happy to finish the detail and the chronology the blowby-blow of we wrote this letter we got this um nonchalant response or no response at all or an unreasonable uh response. There are many examples of that but that's the the broad area of of of concern.

[00:03:14]Um, in fact, without getting into much detail, one of those responses was something like, "Well, you don't have to know what other people have said about you. Just say what just say what you know," kind of thing. And it would be hard to believe that that is a policy of this uh of this commission.

[00:03:38]uh because as you know people have a right of reply uh I mean that's one of the most fundamental rights under the broad rubric of Audi alam party um and and in our view that that's why the commission is populated by legally trained people uh all around uh so that those tried uh issues of fairness can be can be observed.

[00:04:14]Um the second issue is related to the first one which is the this issue of uh uh right of of reply.

[00:04:24]There are various um we understand the difference between uh you know being called here on on specific accusations and therefore being entitled to your to to to to the documentation and being asked to assist the commission and all that. We're not dealing with this at that technical level. But whichever whichever category one falls in, they they surely have a right to at the at the minimum to know to face their accusers to use the colloquial uh expression. Uh and facing your accusers doesn't mean literally facing them. It just means knowing what it is that's going to be said uh which you you might have to respond to.

[00:05:17]Um the next the issue which is the third in in my in my list is that we we one of the things we have been asked to do is to ensure that there will be no straying outside of the the uh subpoena that has brought us here and and the specific issues that are raised there.

[00:05:47]And that's probably related to the to what might be the next issue. So I might as well raise it in combination church just to save time which is the feeling of the general and us that the the issues that he has been asked to deal with have actually been dealt with uh in his first appearance here. We might be wrong about this, but sorry, we might be wrong about this, but uh we on on our um unscientific analysis, he's probably been the witness who has been called back more than anyone else um to come back here despite the fact that he testified for three days in January.

[00:06:35]>> And there's there's a witness that testified for eight days, a mistake.

[00:06:39]Yes, >> the days the days may have been consecutive. I'm not sure. But you are still so far more than the general.

[00:06:48]>> No, chair. I don't want to be nitpicking. No, ours is not about the number of days so much than the the twoing and throwing and being called and then called back and then called back.

[00:06:58]But I take your point, ch the so if if we don't have the gold medal in that, we we probably have the silver.

[00:07:09]So we're still uh um on the >> Can you just repeat the fourth point?

[00:07:14]>> The fourth point the fourth the fourth point is uh I was saying I'm merging it with the third point that that was about uh repetitive questions. Yeah. So it's a if you like it might be a subset of the of the third point it cover the commissioner it covers uh two issues.

[00:07:32]one is is the is the is my original statement that um the issue of the uh breakin theft whatever you call it in in in Port Chapston was as you might remember a a I think it was the last topic for his January uh testimony and it was covered extensively.

[00:07:58]The result of that is that you will find that when you read the statement that was um identified by my colleague miss which is LS1 that's where we respond to the specific questionnaire you'll find that maybe on more than of if if there are 10 questions and I I think there are more than that there but 15 but more than 50% or or even 60% of the of those questions you'll find that we actually just refer the answer is to refer you back to the transcript uh on many occasions and that's because the same thing that was asked then is being asked now and and we don't understand why it the that same information has to be solicited u at great expense uh for the for the for the second time because it doesn't change and that's why we we literally quoted it was not out of disrespect but we just quote uh exactly a verb him what was said before.

[00:09:01]We do take the point of course that since he testified there has been uh further evidence around the same issues.

[00:09:10]So not quibbling with that but the issue is that uh it it's it's quite oppressive uh to the to the general to have to to repeat himself.

[00:09:23]Um and then maybe the the the one issue maybe let me start I'll come to this one last related to this issue of repetition or covering the same ground is an issue which you know to the naked eye might not seem important but it is the the expenses to which the general is subjected because of what he uh might perceive to be repetition of the same ground. You you would appreciate commissioners, chairperson and commissioners that every time he has to come here or every time he has to deal with a a subpoena or a a set and then there's even an instance where the subpoena was literally exactly the same as the one that had been given last year. And then we pointed that out and there was Julie an apology. Well, maybe not in maybe I'm putting it too strongly, but the commission said, "No, sorry, that was a mistake. He has the correct one." Yeah. But that mistake means that he has now to consult on that uh wrong document and when it's discovered that it's the wrong document, a letter has to be written and then apology which we accept um is is is issued. But that doesn't change the the the discomfort or inconvenience.

[00:10:52]And that's just one example.

[00:10:55]Um and therefore it's a very costly exercise. Uh I haven't done the count but my my Lenon friend Miss Tal assures me that the general has said to be go doing this toing and throwing about six times now or that this is his sixth appearance. And I'm sure that also includes the times when he didn't actually testify. And I know it also includes the time when the legal representative was not feeling well. So I'm not piling all of that onto the commission. I'm simply saying that it's it's quite a an expensive exercise.

[00:11:36]Now the the the the last point which is which is um quite worrying is I'll call it for a lack of a better word the issue of of relevance and um this is an issue which the general feels very strongly about and I hope it will be taken in the spirit on which it was intended.

[00:12:04]We're not objecting in the sense of saying he's not going to assist because he's he's very willing to assist the commission and um he and he will just now uh do so but he he he just wants to be for it to be known that he's doing so under uh some serious protest.

[00:12:25]What do we mean by relevance?

[00:12:28]The the the view which which we hold um with respect is that the commission is shall we say confined legally confined to the terms of reference and and uh its mandate and I don't have to motivate that um to the people that I'm addressing uh everyone would accept that at face value but what is the relevance of that to to my address. It is the fact that the and this is also related to the to the fear that they might be straying outside of the of the of the questionnaire.

[00:13:13]Our understanding uh chapen is that this commission is not um is not some surrogate disciplinary committee of the police where um you know we have to interrogate whether this one or that one is a good policeman or a bad police woman or in in the in the in the general sense in the HR sense of the of the word But those issues might be relevant of course to the core mandate of the commission which is criminality, interference and uh and all that uh is defined in the in the in the terms of reference that we concede.

[00:14:01]But the surely there's a line between that sometimes inevitable overlap and um actually focusing as if this is a beauty parade uh about who's the better uh manager or a or a kind of performance assessment. Um so that's the the that's the issue we to the extent that the performance or lack of performance might be relevant and maybe I should interpose almost almost arguing against myself but by saying we accept implicitly that let's take this issue about this theft. The commission is entitled, of course, to say we have to probe whether this theft was um a matter of sheer incompetence or criminality that we accept.

[00:15:03]Uh but there's a a difference between that, as I say, inevitable overlap and then simply going on for days with a witness like the general. But you know why did you not follow this prescript or that prescript? Well, he didn't. But is that um uh relevant to the terms of reference or might that show that he he could have been a better manager? So it's that kind of of of it's not a a bright line but we we that we accept but uh we we would uh we are concerned about about >> just to point out Mr. of in the terms of reference they say we must look at acts or omissions and whether acts or omissions may have contributed.

[00:15:53]>> Absolutely.

[00:15:54]>> So >> absolutely >> to the extent that conduct constitutes an omission >> we would have to look into that and I'm not debating it. I'm just pointing that out.

[00:16:03]>> No I accept that commissioner Kumala. I accept that I would never quibble with that. Except that in the process of probing um you know the the let's say the disappearance of this bottle you might say well I omitted to to take it during the tea time. I accept that the commission or omission like like in criminal law you can be liable for an a positive act or an omission that I accept. I'm making a different point which is that in the probing of the commissions or omissions the feeling that we have particularly from this last round of questionaire is that the focus is more on um well wouldn't it have been better to to go to ping or or to go to pepstein and so on and we accept that that might be relevant but that's not that's not the core mandate of the commission to put it crudely uh as to whether it would have been advisable to to drive on the N2 or to take another another route that may be relevant in the quest in the ultimate question as to whether the taking off the other route was a corrupt act or to go and meet some gangsters or whatever that we accept that in and of itself whether they took this route or that route really quite has got absolutely nothing to do with the commission. It might have something to do with some performance assessment panel of the police as to whether you know so and so is a good manager or a bad manager. I think it's it's that nuance. But I accept I accept that um that that's why I was saying there's no bright line and and we the mission is not to confine or straight jacket the commission.

[00:18:00]Obviously the mandate is wide but but we we we should all be careful not to not to um overdo the the performance assessment.

[00:18:12]Um yes those are the the the the issues that we wanted to to raise as and as I say there are specifics. We have a detailed chronology for example of the correspondence between We have a detailed chronology of the correspondence between the commission and and my attorneys. I don't want to get into those kinds of specifics for now. I I think as long as I've highlighted the the areas of concern and by the way some of these are raised in the general statement uh in in the in in the main body of the statement not not the Q&A part. Thank you. I I I'm indebted to to the commission for the indulgence. Thank you.

[00:18:54]>> Thank you, Mr. Mofu. Yes, Mr. >> Thank you, chair. Chair, I I perhaps will not address every issue raised by Mr. Bofu for two reasons. Um, one, it's some of these issues will be elaborated upon by the general himself because they form part of his statement. So perhaps that might be at the appropriate time to engage with them. But secondly because uh to a large to some extent Mr. Bofo takes issue with the processes of the commission and uh and the relevance of what the commission is pursuing in so far as this particular witness is concerned. I can put up an argument as to why we consider the witness relevant but um perhaps as a general point that would be best placed with the commissioners to engage with. So if if I don't address everything uh I want to effectively put on record that it's not due to a lack of answer on my part but um I I I choose to limit my answer on the two bases.

[00:20:03]However, there are certain things that I I believe I must address because this would be strictly within the knowledge of the evidence leaders and not necessarily the commissioners. The first complaint is a serial refusal to produce documents. I would like to place on record that the general even in his statement does not make such an allegation. There is not a single document that the evidence leaders have been required to produce and have failed to produce. To the extent that there might be oversight on my part personally on that, I would be happy to be directed there too and I'll try and and establish why that is the case. The only issue that the general raises in his supplementary statement are documents relating to the testimony I think of I'll get the ranks wrong. I apologize.

[00:20:53]Kennel Prince Loop and and another and um he claims these were provided to him two days before his statement was due when um General Sona's appearance was postponed the last time these issues were specifically dealt with when um my learned friend Miss Tala addressed the commission and it was highlighted that precisely Those documents were provided on the basis of a request from General Sona. The request came in that week and by the 29th uh the documents were provided.

[00:21:37]So I it becomes challenging for me to appreciate exactly which documents we are said to have refused to produce on a serial basis.

[00:21:52]and and commissioners I dare say that there is none.

[00:21:57]Secondly, and once again, General Surona will address these issues.

[00:22:04]Uh I I do know that Mr. Moffu says that they appreciate the distinction between uh what we would term a rule three 3.5 notice and a regulation 10.6.

[00:22:18]But but I I I my understanding of and I I put this in inverted commas of his and by his I mean the expanded um definition plural complaints seems to blur the distinction between the two. If one has regard to uh General Sona's statement, his complaints stem largely from a view that the we have failed to serve him with a rule 3.5 uh notices and these are notices that we issue based on testimony that is received and evidence by the commission on the basis of which we conclude that it would appear somebody is implicated.

[00:23:08]The witnesses he references in our understanding and and I do accept that our understanding may very well have been wrong have not implicated General Sona.

[00:23:20]Those witnesses have testified to what they know about the facts that they were called upon to testify on. There may be a difference in response to the same question in that General Sona would have given a different response but that that um that does not in itself imply that he's implicated.

[00:23:47]So technically it would sound like um and again subject I'm subject to correction that there's an invitation that we we issue rule 3.5 notices because each time general Sona's name is mentioned by the witnesses who have app appeared before you that constitutes implication not in our view not in the manner that uh that term is dealt with in the rules. Once a witness is implicated, we are under obligation to issue a rule 3.5 to bring that to their attention and to afford that person the opportunity to deal with the uh the implication. We have found none and no rule three 3.5 uh notices have been issued. What instead has been issued is a regulation 10.6 Six, which once again is a regul is a document that is generated by evidence leaders based on the evidence and testimony before the commission where we believe in terms of the regulations and the rules that a specific person may be able to shed more light. In that context, specific questions are posed to the potential witness and they are invited to answer.

[00:25:02]So, so it becomes a a challenge when we are confronted with um an allegation that we we do not afford witnesses and particular General Sona the right of reply.

[00:25:16]his right of reply as I understand would arise where he's implicated where he is not implicated um his right of reply does not arise in any event on a proper reading of the rules any witness who believes that they may be of assistance to the commission either by providing a contrary position or testimony is entitled to make application. So to the extent that it is considered that we have failed to issue three rule 3.5 notices which I contend it's not correct none was due to general sona on our assessment then it was still open to general sona and his team to apply to testify on those matters. Thirdly, and most importantly, notwithstanding the fact that General Sona has specified which witnesses implicated him, one in his supplementary statement, he has failed to articulate the ex that implication, the extent thereof, and secondly has failed to take opportunity to deal with that which he considers to be an implication.

[00:26:22]Now I I understand and I think we all do the basic legal principle of everyone's right to face their accusers. I'm just at a loss at at you know with who in this context are the accusers. There are no accusers to General Sona.

[00:26:42]Lastly, it is important to bear in mind that General Sona was scheduled to appear on the 8th of May 2026.

[00:26:52]He was part of the DPCI KZN and management from the management of uh Port Shepton DPCI uh Kel Prince Louu and them to Brigadier Nuswa his direct reportee and eventually himself the one person who's responsible for DPCI KZ and that was the stream that was scheduled to start from on the 8th.

[00:27:20]uh together with that were the people who were involved in the actual seizure and subsequent storage of the drugs.

[00:27:29]We are here today uh on the 19th of June, 6 weeks later in part due to General Sona's own application to uh postpone his testimony firstly from the 8th of May up until the 1st of June. He presented himself on the 1st of June.

[00:27:48]Due to uh the commission's own scheduling challenges, he had to be stood down to the 5th of June. Came the 5th of June, um we accepted that his legal representative was indisposed and there was a further extension.

[00:28:03]So the six counts of appearance don't seem to tally with my my record.

[00:28:10]Um the request that he come only after everybody has testified on the Porchepton drug bust presupposes that those witnesses implicate him and there is no fact that even points to that. He was never intended to be engaged on the matter as an implicated person. the I the thinking has always been to engage him as head of DPCI KZN who I assume perhaps wrongly at the end of the day would accept that the buck stops with him.

[00:28:53]So the twoing and throwing of correspondence has always been to try and clarify this challenge. Why General Sona believes that he can only offer his version of the events and the questions posed after everybody has spoken. The there are rules as I read them and the regulations do not allow for that. uh and it is in that context that the response eventually to his attendees was that they need not worry about whether what others would potentially say, he is required to address himself to the questions posed both in the regulation 106 and the subpoena to the extent that he's able to do so. Should another witness come forward after he has testified to contradict him, then that is for the commission to to engage with and to determine whose version is acceptable and on what basis.

[00:29:52]Um I I don't know how other commissioners intend to deal with this but um the the to the extent that I properly understood my colleague Mr. Poffu sounds like he wants asurances that there will be no straying outside the subpoena. I I I I don't know what that means but I I can I can assure him that uh subpoenas are issued regulation 106s are issued and in the course of engagement with the witnesses there are issues that arise from the question and answer session and for lack of a better term I'll call them offshoots and I don't know if it is the offshoots that he would deem constitute straying outside the subpoena But that that just might be an issue with my my my uh understanding.

[00:30:52]Did the general speak to some of these matters uh at his previous appearance in January 2026? Yes, he did and we are truly aware of that. However, since his appearance in 2026, the commission has been placed in possession of significant documents that are relevant to the issue. other witnesses have testified and to produce documents before the commission and as the head of the case at NDPCI um we believe that it is necessary to engage him based on what has since come to light.

[00:31:30]I I I I don't see that to be a challenge. Um and and it doesn't for as far as I'm concerned constitute toing and throwing. It is assisting this commission to arrive at a correct factual position as regards matters that fall within its terms of reference. Uh the relevance we maintain that they are relevant. The rules and the regulations tell us. So uh at the risk of stating the obvious amongst other things, what this commission is mandated to to interrogate is whether criminal syndicates including but not limited to drug cartels have infiltrated or exerted undue influence over a range of entities including the SAPs of which the um DPCI is a part. and then to consider the adequacy of current legislation, policies and institutional arrangements in preventing such infiltration and then to to make recommendations where necessary.

[00:32:40]I I I I I don't understand the contention that where he admits he did not follow prescripts that that is where the issue must die for purposes of the terms of reference for this commission.

[00:32:57]>> The one I had in mind miss three which says the role of senior subs members in aiding or abetting >> criminal activity either through act or omission. I fully agree and and Commissioner Kumalo, thank you.

[00:33:12]So, so the challenge I have is what comes across as a position that says notwithstanding the wording and the p the wording of the terms of right the purpose of the commission that the head of the institution that was responsible for precisely these drugs cannot be engaged more than once and cannot render assistance to this commission. Um and if I recall our our our rules require that an a witness becomes available and answers the questions to the satisfaction of the commission. To the extent that the commissioners remain unsatisfied, I submit that it is the commissioners are entitled to recall a witness to assist them in determining the correct factual position.

[00:34:03]I do not uh believe as as Mr. suggests that this commission is attempting as he says to be a surrogate disciplinary process or committee of of of the police. On the contrary and and um particularly on on on the basis that Commissioner Kumalo highlights the role of senior officials in SPS including KZ and remains a pivotal question before this commission and and must be answered and the only person who can answer precisely those questions are those who are deemed to be senior officials within concepts.

[00:34:51]Um it's not a performance assessment but there will be interrogation about the knowledge the application and approval of conduct by the head of the KZ and DPCI of members that resort under his authority.

[00:35:17]And that that that engagement must be heard to understand as my Leonard friend correctly pointed out whether it was he says uh whether it's incompetence or it's deliberate.

[00:35:32]To answer that question, we must first understand what the understanding was, the appreciation for applicable prescripts and the like to enable the commissioners to make a determination as to exactly what what transpired.

[00:35:49]An interesting point was made by by Mr. Tim Bofu where he states that it is unnecessary to recall the general particularly where he admits that he didn't follow prescripts. I'm not aware of such an admission. I'm not aware of him so admitting in his first statement during his first appearance in January in the supplementary statement nor in the responses to regulation 106. I see Mr. Impo vigorously shaking his head. So I take it that he means I completely misunderstood him. I'll take that that this misunderstanding is mine. But I just wanted to clarify that precisely what the prescripts provide for and the extent to which they were complied is a legitimate conversation to have with the general and that has not to date been had. Thank you, chair.

[00:36:43]>> Thank you, Miss Silo. Yes, Mr. Bou.

[00:36:46]>> Thank you, Chair. Again, I'll endeavor to be brief. Um, chair. Well, it looks like my Len friend, there's a lot of things that she says she doesn't understand or she's at her loss or at sea or whatever. I'll I'll try my best uh to to to assist chairperson. We are not this is not some quibbling about technicalities. We understand very well the difference between 10.6 6 and 3.5 as I was at pains to point out in my in my in my address. Uh but you know those are just lawyers uh things we are saying that if a person is going to be if some negative or adverse information is going to be given about me whether it's under 10.6 or 10.20 20 doesn't matter. I am entitled to know about that in good time so that I can respond to it. So the I I don't want to get into legalizia.

[00:37:54]The issue of the matter is that um I think what swarant officer Sander Brigadier uh Lieutenant Colonel Jacobs and somebody called witness H to some extent maybe the word implicate is too strong but there's nobody who can um genuinely deny that adverse statements were made about the general by those those persons.

[00:38:25]And that's all we're asking for. We're saying if there's going to be adverse information which might not rise to the levels of implication or whatever to a lawyer's mind but which is adverse to his interest. He is surely but surely entitled uh to have that information.

[00:38:42]Now we ask for that information just just as an example. There's a letter dated the 1st of June 2026 from my attorneys which which I'm using this as an example. I was saying I don't want to get into the minutia but the response to that letter comes from a a Geraldin beggar from this commission and um I'll just read the first paragraph. We with reference to your letter dated at 1 June 2026. We wish to remind you that your client uh and your client that all witnesses are called to testify on their knowledge of any fact. It is important to mention and place on record that their knowledge is not dependent on whether others who testify before them implicate them. And surely that can be true. your client statement that was called for through relevant notices cannot in any way be implicated by someone else's version of the truth.

[00:39:41]>> This is like a a an arrogant response.

[00:39:44]I'm sorry.

[00:39:46]>> Which >> what was what was the nature of the request there?

[00:39:48]>> The request? Yes.

[00:39:49]>> On the letter of June.

[00:39:52]>> Yes. Chair I again I won't bore you with the long whole letter. I'll just pick up one paragraph just so that you get the gist.

[00:39:59]>> 27 >> paragraph three. Sorry.

[00:40:00]>> It's on page 27. Yes. On 27. Thank you, Commissioner U.

[00:40:07]Kumalo. The chair. I'll just read one paragraph. I'm sure everyone will then get the gist here. So, it says we refer to the chairperson's ruling on one Juno and so on and so on. Then the paragraph says equally we're also instructed to request the statement of warrant officer KL SA who is who in his testimony of one June made certain allegations against major general Sona and if I may pause there that's what we mean when we say made allegations against it as I say it may or may not rise to the levels of implication in terms of of the technical interpretation and which allegations our client wishes to respond to well if he wishes to respond to he wishes to respond to nobody can take that away from me had our client been aware to of warrant officer senders appearance our client would have requested for copies of his statement and unex before being excused by the commission earlier today that was the first our client was made aware by the media that he was implicated in today's proceedings of the commission I've just written that paragraph as an example so it was that kind of request then there's another one in the next paragraph about Kennel Duma and so on and so on. And then we got the response that I just read out and then the rest of that letter uh uh from of the response does what Miss uh Melan Miss Silo is just doing about educating us about regulation 106 and 3.5. So you'll see that um the last paragraph to the extent that he may he may in time be implicated he shall be duly served with a 3.5 notice and afforded an opportunity to deal with such implication. Currently there is a ruling requiring him to file a statement before midnight and is expected to do so uh to abide thereby there's a veiled threat there that if he doesn't do so obviously the consequences would follow. So, chair, I'm I'm I'm I'm really um trying to to to not to make this into a technical a technical issue about um the you know the the meaning of 3.5 and 10.6 and the word implicated and so on.

[00:42:26]Um, and not to be technical as Misso is rightfully pointed out here. If if we want to go that route, well, we we would be happy to do so. Um, and let me if I don't make one thing clear, let me make this clear.

[00:42:44]We do not quibble with widening the scope. so as to reach the the terms of reference the issues in the terms of reference homo made a good example of that I I thought I had made that concession a long time ago but what was saying is this maybe it's much more nuanced that and that goes to I think uh I must say general kumal to commissioner Kumala's uh uh um issue as well.

[00:43:26]Commissioners, if anyone mis understands me to be saying that the commission must simply technically just look at the terms of reference and straight jacket themselves to that, that's not what I'm saying.

[00:43:40]The at least two of the commissioners and Miss Silo and I were once in a commission where that was important.

[00:43:47]Almost every witness was asked about regulation this and regulation that. But it was not an end in itself. It was for the purposes of determining whether the whatever the terms of reference of that commission were were complied or not.

[00:44:02]That's really what I'm saying. So let me make a a a silly example. If we're going to be saying that General Sona uh was always coming late at work, right? It might be very interesting and dramatic for television that yo he came late so a thousand times. Yeah. But the answer is well. So what?

[00:44:27]Because that's can only be relevant if as commissioner Kumalo says that was in aid of aiding and abetting and all the things that are in the terms of reference then it's clearly relevant.

[00:44:38]But if as an an end in itself that is a serial late come well who cares.

[00:45:23]that that's the the the the issue about marrying the the the the peripheral issues to the terms of reference. That's really, as I say, maybe it's a more nuanced complaint that that that we're having. But there it is. We just want to place it on the record. We don't want to we don't need to to agree or disagree with the evidence leaders about it.

[00:45:46]Um the the the the last point is this.

[00:45:54]We all know the legal is about um implicating yourself and criminating yourself. I don't want to go there but and and that's where I make this issue about HR uh and and uh distinguishing this commission from that. Let me give you a live example. On the 31st of January, two days after the last appearance of the general here, he was served with a disciplinary notice by the police.

[00:46:28]And it was it said in so many words, you are here being suspended because of what you said at the Madanga Commission. Just as plain as that, it was not even hidden. So it was a direct uh uh so somebody was sitting in some HR office watching the proceedings here and taking notes and then they say okay now you're you're being charged. Now I don't want to get into the legal lease about the about incriminating yourself but that's that's just a live example by the way that suspension lapsed because in 60 days time nothing had happened. We all know again of the inappropriately named Madanga unit in the police.

[00:47:12]>> Let me let me on record say in so many ways that I objected strongly to that.

[00:47:17]>> I know rightfully so.

[00:47:18]>> Immediately I immediately engaged um the national commissioner and he agreed that that was named wrongly.

[00:47:25]>> Rightfully so.

[00:47:26]>> But unfortunately was suspended before he could do anything and I later engaged the acting national.

[00:47:32]>> No I appreciate that. In fact, >> even even the latest name is still unfortunate because it still has commission in it.

[00:47:39]>> Exactly. But but I accept just to in in your defense, chair, I also became aware of it when you raised the objection and I I it was a welltimed one because it could have gotten into into the minds of the of the nation wrongly.

[00:47:57]>> It gives the impression that I'm going around arresting people.

[00:48:00]>> Absolutely. or feeding some unit with with with information. But be that as it may ch and we we accept implicitly that that that is not the case. But clearly there are people whether in the inappropriately named unit or whatever it name is its new name is or the HR offices of subs who who see their task as it's quite laziness to be honest as just sitting there here and watching and then making notes and and then um pouncing on people that might be um shall we call an inherent danger in proceedings like this. We accept that.

[00:48:45]But all we're saying is that we shouldn't be playing into into into that. Yeah. In in whatever way. Yeah. Um I think that's let me just check my notes. Chair.

[00:49:03]Yes.

[00:49:04]the the the point about the the repetitive nature of the questioning is not a feeble point.

[00:49:15]My learned colleague Misso says I'm quoting her verbatim.

[00:49:21]The commission has been placed into has since been placed into possession since he was here in January has since been placed into possession of further information.

[00:49:33]uh on what has since come to light.

[00:49:39]In the same breath, she says she's at a loss as to what we're complaining about.

[00:49:43]This is what we're complaining about. If the commission has been placed into possession of further information and that has necessitated for him to be called, then we should be placed in the same possession with the greatest respect. That's the that's that's this one doesn't have to be a lawyer to understand that that all we're saying is that yes, we accept that some new things might have come to light.

[00:50:09]They might necessitate him being recalled. But what's wrong with placing us in the same position as the commission in respect of those new things that has since come to light so that we are in a position to assist you.

[00:50:23]That can be so difficult to understand.

[00:50:26]Um, and yeah, I don't want to get into this thing about the back stops with him quite frankly is is is doesn't cut cut doesn't make the cut because it doesn't work like that. We know that he was the head in case at N. But how far do you take this back proverbial back you know then it means this commission should only have two witnesses the minister and the national commissioner because or the president because the buck stops with them doesn't we I understand that there's a hier hierarchy and maybe other small bucks along al along the way but it can be that simply because I'm overall in charge then I'm expected to know every little detail about every boom in in subs in the whole country surely that that's not that's not what the back stops here means >> on your on your pen ultimate point Mr. about Miss Silo's submission >> that the general um must respond to questions or testify today because the commission has since been placed in possession of new information on that.

[00:51:49]And you then say that it is exactly because of that that um the general must also be placed in possession of that information.

[00:52:01]Um you did give or rather refer to the one example from the letter. Um as we sit here now um are you in a position to itemize the information that the general has not been furnished with?

[00:52:21]I'm asking that so that so as to see whether engagements between you and Mr. law cannot resolve >> can resolve the issue >> resolve that issue >> chair yes we are in such a position but again I'm at pains to say that we're not we don't want to to to delay the the the testimony we simply want to qualify so that if we get to a stage where the general for example says I I don't I can't answer that because I'm being ambushed or I'm hearing about it for the first time then at least this background must be taken into account that's really but >> that's that's thank Thank you for that's a very practical approach. Thank you.

[00:52:59]>> Practical approach chair but it will also assist. Remember my first qualification was that uh should it become necessary we'll itemize these things because if you do it now it will just take a long time. That's why I was just giving the the the highlights chair let me just make at the expense of of of u speaking against what I've just said. I'll just give you another practical example.

[00:53:26]We've been asking for the statement the commission statement of um what is it just as an example and we have not been finished with that.

[00:53:42]Now, it turns out two days ago I'm sitting at home washing uh the commission and at night I can only wash the the repeats. Yeah. And as the following question is put to not even a question it's a it's an answer coming from general news. So if I'm not mistaken it's paragraph 43 of his statement. He says, "You know, I was made to understand that General Sona has a problem with this." And one of the commissioners, I'm not sure which one, says, "You were made to understand by who?" And he says, "By the evidence leaders."

[00:54:25]That is a you'll find that literally the the whole nation was watching it. Now, what does that say to me? It says that when uh Brigadier was being um recognized or or preparing for his statement, he was told what the version of uh General Sona will be on that particular point. It's it's not important for now. Whatever the point was now all we're asking is for the same courtesy with respect that when General Sona was also doing his statement it would have been very nice that he knew what the contrary versions or whatever it is of whoever it is uh to to the extent that they were available. We accept that the evidence leaders are not magicians or clairvoyants who would know what someone is going to say in the future.

[00:55:18]But um to Oang but but to to to the extent that the the the information was known, it it it would have been um appropriate, let me put it like that, not just nice, it would have been appropriate legally speaking for for him to be placed in the same position that the evidence leaders chose to put General Brigade. Just on that point as I say the the point itself is not important but it's the principle that I'm addressing. Thank you >> chair through through you if I may just address the the last point and I I don't want to have a two and by the way >> shouldn't let let me give you an opportunity to respond to just specifically that >> when no let let finish >> and then I'll give you an opportunity to respond. I I assumed he had finished. I saw his mic go off. So I made certain assumptions that >> when he said thank you. I also thought so too.

[00:56:16]>> No. Um I was just uh ving yesterday. Um the the the I've lost my train of thought now. Yeah.

[00:56:29]I was I was saying chair that the the what we require is to be placed in a position where we can maximally assist this commission. Really that's really all we're saying. It's all very well if people want to us to come here and then say things and then say no I'm hearing about that for the first time so that we can come again which is what exactly what want to avoid for him to come for the seventh time or sixth time or whatever the number is uh simply because as as you say chair let's say for example I was going to give you this catalog of things now and give it to Miss and it turns out that they were deserved to be given anyway what will be the result of that it will be that he must now be given given that opportunity, come here again next week or next month and so on. We don't want that because he doesn't have the means to do that. Every time he comes here, he has to pay lawyers. He has to this is a a person who's uh not a person of uh uh means and it's it's it's but at the same time he doesn't want to face the risk of uh being pounced upon by that unit whose name we will not repeat after he has been here. So the risks are real. They're not they're not speculative as I've indicated with the question of the the suspension and so on. Thank you.

[00:57:53]>> Thank you, Mr. Bou.

[00:58:01]>> Mr. I think in in fairness to to Miss Burger uh because you of how you've characterized her response and she and she doesn't have a right to respond in this platform. Um I think in fairness to her this must be placed on record the context of the letter of the 1st of June from your instructing attorney. Um what that letter does in the penultimate in the last paragraph in fact in paragraph four and five four and five what what in fact maybe let me first say the context of the letter is earlier in the day there had been a ruling by the chairperson as you correctly say >> uh that the that general should file a statement.

[00:58:48]Now this letter from the attorneys in the par in paragraphs four and five seeks a postponement of the filing of that statement >> and and that postponement is sort on the basis that other witnesses are still going to testify. There are other statements. I should first I should first see those statements and I should not testify first uh before the other witnesses that I want to hear what they're going to say. I need to see in their statements what they say about me.

[00:59:18]>> The response of Mr. of Miss Burger that you have described in the way that you've characterized in the way that you have >> um is to say that General there is a ruling you must abide >> by that ruling um and not and not and you can't get a postponement basically you've been given a date. So what you characterize as arrogant is really a restating of the position and and um and I think it should be seen in that in that context and I think it is important >> that the context should be should be put out.

[00:59:56]>> That's all I wanted to say about it that in fairness to her.

[01:00:00]>> Thank you commissioner. I we we accept that >> the that might have been the intention might have been innocent. I'm simply stating to the commission how it was received.

[01:00:12]>> Yes.

[01:00:13]>> By by the general.

[01:00:14]>> Okay.

[01:00:14]>> Um >> and and you know there was one for example that said no you must ignore that subpoena some subpoena. I think one of the wrong ones. And I thought it's all very well to say that to a person.

[01:00:28]You must ignore a subpoena. But we all know what the implications are of ignoring a subpoena. Yeah.

[01:00:33]>> So you can only do that really once you've been told to to do so.

[01:00:37]>> Yes. But >> no no I was just dealing with this because I thought it is important to >> we accept at face value that maybe it was not meant as you know just take a hike or whatever however it was understood but that's how we we read it because in the end >> doesn't matter what the tone or whatever in the end we were not given that information that's really our complaint not the tone of the letter and such >> and maybe the other thing to say about it so you the the response is a response.

[01:01:12]This is about the internal workings of the commission. So when a letter like this comes, it's not Ms. Bear who responds of her own accord and initiative. Something like this comes to the commissioners that you gave a ruling, we now have this letter. So where she says you are required to comply, it is it is a communication that comes from the commission. And I think that that should be should be clear. the the second issue and the second one I mention only so that uh General Sona does not if if he's under that impression he he it's clear that he's not he's not targeted as such uh this is about statements that he asked for this he was told about what was in what general kusa I think brigadier >> yes when in fact he hadn't been given his statement the the commission in the commission no witness who comes to testify has been given statements of witnesses that have were yet to testify we we haven't done that with any witness in fact the the practice is statements of witnesses do not go out we don't even publish them we don't give to the media we don't put them on the website until the witness has testified so in so far as he may have requested statements of witnesses yet to testify. The answers he got are answers that are apply generally, which is statements do not go out until a witness has testified. And I say that only to dispel any idea that he he alone may be treated unfair. If it is unfair, it's unfair to everybody who's had to testify here.

[01:02:52]>> Yeah. Thank Thank you. Very quickly again without any qualification we accept the asurances about about the intentions and the patterns of the commission. We we we we have nothing to say about that. The the the issue we are raising the fact that no witness has been given information before doesn't make it right with respect. If if if it's wrong, it's wrong. Whether it's been done throughout the then uh so be it. Maybe those witnesses did not make the requests, the repeated requests that we made or maybe they didn't need the statement. We we do.

[01:03:36]>> Mr. The the practical and logical point is this that witnesses often have to confirm when they when the oath is administered that this is my statement and that's my signature. Yeah. And often they have to correct those statements and say no no.

[01:03:55]>> So you can understand how impractical it is before a witness has confirmed that that's his final statement to distribute it. Fair enough. Because if a witness then when they take the stand they say well actually as happened with brigadier news I discard my previous statements and I'm now relying on the one that I finalized this morning. It would have been prejuditial to your client if the ones that Musa had discarded were the ones given to him. So there are practical considerations that inform some of these processes. So don't dismiss them as being >> uh unworkable. They they are there for a reason. Yes. No, chair and and commissioners, that's that's um Commissioner Baloy's second point that you've just amplified. And again, we accept that. I'm not dismissing. I'm simply I don't expect the commission I'm not I don't want to be in some debate with the commissioners trying to justify uh some unjustifiable things here. I'm saying here I accept that you can you may not it's been explained to me now by the two commissioners and I accept it that it might not be a practical thing to do to give somebody statement prior to their uh testimony. But I've given you examples where that what you've just told me doesn't apply. So where where's the statement of Sander then if what you the two commissioners are saying because he has already testified he has already owned his statement. So that explanation doesn't assist me as it might assist with another witness yet to come but it cannot answer my complaint about witnesses that have already complained rather testified.

[01:05:39]Thank you.

[01:05:44]>> Uh Mr. Lo, there was the point you wanted to respond to.

[01:05:48]>> Yes. Yes. Thank you chair. Uh I think to a large extent uh commissioners Balo and and Kumalo have have addressed this point and I wanted to address it for the benefit perhaps of all future witnesses.

[01:06:02]Um if if one has regard to the very letter that Mr. Bofu has referenced from uh General Sona's attenues at page 27.

[01:06:15]If one has regard to paragraph four um that his legal representatives state to the extent that Lieutenant Kennel Duma's testimony may implicate General Sona, it will be prejuditial for their client to file an incomplete statement which is silent on allegations which may be made against him by Kennel Duma. This was drafted prior to Buchen Duma uh presenting himself before the commission. Now the challenge is whether or not it his testimony may implicate him and I think Mr. Timu correctly uh acknowledge that we don't have a crystal ball. What we have at any given time is a statement by a witness. And that is where rule 3.5 kicks in. If that particular statement already implicates somebody, a rule 3.5 should go out and setting out the extent of the implication. But whether the statement does not, then the rule 35 notice is not issued. But in the course of testimony, the witness may expand on his statement and in the course of doing so implicate.

[01:07:38]That is not the original statement that implicated. It is important that u anyone who who will be called to appear understands that and the point commissioner Baloi made um brigadier is a brigadier testified on Wednesday the 17th.

[01:07:58]technically this 17th of June by the 1st of June General Sona's team wanted a copy of his statement and and um as the commissioner points out the commission does not release any statement until the witness has confirmed it. So I I don't know how we can potentially assist General Sona, but I think I it is important to point out that it is not um a decision that is necessarily prejuditial to him. It's prejudicial to all. So it cannot be claimed that we are being particularly harsh to General Sona. There's no basis for such conclusion. Thank you, Chair.

[01:08:42]>> Thank you, Miss Silo. I forgot to thank you at the end of your reply, Mr. Boufu.

[01:08:47]Thank you.

[01:08:48]>> Uh, thank you.

[01:08:57]>> I'm sorry. Yes, I think it it will be best to leave it there. Uh, chairperson, we we really appreciate the opportunity to to place those concerns on the on the record. Okay.

[01:09:11]>> Thank you. um what you said when I um raised uh the the issue of uh what outstanding information you you still required um I think uh charted the the way forward in the sense that you said let's go ahead so I accept that let us start with the testimony let's go ahead um if anything arises is at whatever point it should be dealt with at that stage that is as and when it does arise.

[01:09:48]>> Thank you. Thank you chair. Just a a correction of for the record. Um I understand that the protocol is to refer to people with their titles. So to the extent that I said sender, I meant warrant officer sender. Sometimes I get confused with these uh ranks but uh it was not out of disrespect. I also do that from time to time not so much just referring to the surname but I forget the ranks >> the ranks >> and I do something that I know is technically incorrect I just say officer for example sender >> but officers are commissioned officers not not every police >> thank you thank you um >> thank you chair we are ready to begin >> yes yes