C O M M I S S I O N O F I N Q U I RY I N T O S TAT E C A P T U R E
H E L D AT
PA R K T O W N , J O H A N N E S B U R G

10

1 6 J A N U A RY 2 0 2 0

D AY 2 0 0
FINAL

20

16 JANUARY 2020 – DAY 200
P R O C E E D I N G S R E S U M E O N 1 6 J A N U A RY 2 0 2 0
C H A I R P E R S O N : G o o d m o r n i n g M s W e n t z e l , g o o d m o r n i n g e v e r y b o d y.
A D V S U S A N W E N T Z E L : G o o d m o r n i n g C h a i r.
C H A I R P E R S O N : Ye s a r e y o u r e a d y ?
A D V S U S A N W E N T Z E L : Ye s I a m r e a d y.
C H A I R P E R S O N : Ye s . I c a u s e d a m e s s a g e t o b e s e n t t h r o u g h t o y o u t o
enable you to apply your mind to the question of how much in Doctor
L e b e y a ’s

statement

falls

within

the

Te r m s

of

Reference

of

the

Commission.
10

A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:

Because if one reads what he says in his statement

t h e r e i s n o d o u b t t h a t i f a l l o f t h a t i s t r u e h e w a s t r e a t e d v e r y b a d l y.
He was side-lined in various ways within the SAPS. But what seems to
be lacking is a clear connection with that ill treatment and being sidel i n e d w i t h t h e Te r m s o f R e f e r e n c e .

Now after reading his statement I

h a v e n o t h a d a c h a n c e t o g o b a c k a n d h a v e a l o o k a t t h e Te r m s o f
Reference but it seemed to me that maybe quite a limited portion of it
m a y f a l l w i t h i n t h e Te r m s o f R e f e r e n c e .

So that is why I sent a

message so that you could apply your mind before we start so that you
20

could enlighten me if your submission is that all of it does fall within
t h e Te r m s o f R e f e r e n c e . B e c a u s e a c r o s s t h e b r e a d t h a n d l e n g t h o f t h e
country there would be many people who have been side-lined and
have been ill-treated and who have been denied promotions that they
deserved and so on and so on. But not all of those people – not all of
t h e i r c a s e s f a l l w i t h i n t h e Te r m s o f R e f e r e n c e .

Page 2 of 42

We must always ask

16 JANUARY 2020 – DAY 200
o u r s e l v e s t h e q u e s t i o n , h o w d o e s t h i s f a l l w i t h i n t h e Te r m s o f
Reference?

So that we do not end up spending time on matters that

m i g h t n o t f a l l w i t h i n t h e Te r m s o f R e f e r e n c e . S o y o u h a v e h a d a t i m e t o
have a look and maybe you might point out things that I might not have
had a chance to look at.
A D V S U S A N W E N T Z E L : Ye s C h a i r. C h a i r I t h a n k y o u f o r t h e c o u r t e s y
of trying to get hold of me in order to ask me to apply my mind to that
issue. Unfortunately I was consulting with General Lebeya this morning
but it so turns out that that is the first issue that I addressed with him
10

although I did not get the message.

So it is something that I have

d i s c u s s e d w i t h h i m a n d I a l s o h a v e h a d a d i ff i c u l t y p a r t i c u l a r l y w i t h t h e
– all the detail about the trial in the labour court.

And I was not

p r o p o s i n g t o d e a l w i t h t h a t i n a n y r e a l d e t a i l . R e g a r d i n g t h e Te r m s o f
Reference Chair if …(intervenes).
CHAIRPERSON: One second. Where is my blue book that has got the
Te r m s o f R e f e r e n c e ? O r h a s i t p u t t h e r e . Ye s .
ADV SUSAN WENTZEL: If I might just point out at the beginning. The
statement submitted to the Commission was submitted by General
Lebeya himself.
20

CHAIRPERSON: Please do not stand too far from the microphone.
A D V S U S A N W E N T Z E L : S o r r y.
CHAIRPERSON: Otherwise I cannot hear you.
A D V S U S A N W E N T Z E L : S o r r y. I w o u l d l i k e t o p o i n t o u t a t t h e o u t s e t
t h a t t h e a ff i d a v i t p r e p a r e d b y G e n e r a l L e b e y a w a s p r e p a r e d b y h i m . H e
is a highly educated man.

H e h a s a d o c t o r a t e i n l a w.

Page 3 of 42

Secondly

16 JANUARY 2020 – DAY 200
…(intervenes).
CHAIRPERSON: But of course he – you are the people who needed to
read it and …(intervenes).
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: And say and see whether …(intervenes).
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:

W h a t i t c o n t a i n s f a l l s w i t h i n t h e Te r m s o f R e f e r e n c e

and if you did not think so raise that with him and hear what he has to
s a y.
10

A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: Ja.
ADV SUSAN WENTZEL: As I have understood his statement and it has
been clarified this morning is that General Lebeya is of the firm view
that his treatment was as a direct result of his involvement in the
m u r d e r c a s e i n v o l v i n g – i f I c a n j u s t g e t h i s n a m e c o r r e c t l y.

Ts h e p o

Oupa Ramogibe in – and also in investigating the irregularities at Crime
Intelligence.

And in essence he says that after the Commissioner

General Phiyega

was

appointed.

Her

attitude

to

him

changed

completely once she became aware that he had been involved in these
20

investigations.

And he believes that his treatment from then on

…(intervenes).
CHAIRPERSON:

But I do not think that – I do not remember seeing

anything in the statement that necessarily connects – or that says that
it was because Ms Phiyega had become aware of his role in that
regard.

I d o n o t r e m e m b e r s e e i n g s o m e t h i n g t h a t i s t o t h a t e ff e c t .

Page 4 of 42

16 JANUARY 2020 – DAY 200
What does appear from the statement is that Ms Phiyega quite early
after she had arrived seemed to ignore him in circumstances where he
was one of her deputies. Seemed to ignore him and did not include him
in the Dumela sessions that he – she was going around about and of
course a number of things emerged from the statement that seemed to
suggest that for some reason she either did not like him or did not want
to give him the recognition that he deserved. But what is not clear is
what that reason is and whether that reason would be something
c o n n e c t e d w i t h a n y t h i n g i n t h e Te r m s o f R e f e r e n c e .
10

ADV SUSAN WENTZEL: Chair if …(intervenes).
CHAIRPERSON: Oh actually after I had finished reading the statement
I w o n d e r e d w h e t h e r i t i s n o t p r e m a t u r e t o h e a r D o c t o r L e b e y a ’s
evidence because the question that I had was, has there been proper
investigation of the issues that are dealt with in this statement?
Because maybe a deeper and proper investigation might actually bring
about things that will connect what was done to him properly with the
Te r m s o f R e f e r e n c e o f t h e C o m m i s s i o n . T h e r e a r e d o c u m e n t s t h a t h e
refers to that he could not place before me because they remain
classified.

20

I do not know if anybody has made any attempt to have

those documents declassified so that we could see whether the
contents of those documents.
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: Enlighten us as to what was known by the authorities
about him.

What they may have said about him.

There is the one

remark which was told to him by Lieutenant General Mkhwanazi when

Page 5 of 42

16 JANUARY 2020 – DAY 200
he was acting National Commissioner that in a meeting that he had with
the former President the former President said he kept on hearing
Lebeya, Lebeya, Lebeya, who is this Lebeya?
leave it like that it is not terribly helpful.

And – but when you

So it may well be that a

deeper investigation would be able to reveal something. Because when
you read it you feel that there must have been something – what was
it? But I do not think it comes out as clearly as one would like from the
statement.
A D V S U S A N W E N T Z E L : Ye s .
10

CHAIRPERSON: But you – tell me what your – what you have to say?
A D V S U S A N W E N T Z E L : I f I c o u l d r e f e r y o u t o p a g e 11 p a r a g r a p h 3 0 o f
the statement?

Yo u w i l l s e e t h a t i t s a i d t h e r e t h a t o n t h e 1 s t o f J u l y

2009 General Mdluli was appointed as the Divisional Commissioner of
C r i m e I n t e l l i g e n c e . Yo u w i l l s e e t h a t i t w a s o n l y a b o u t s i x w e e k s l a t e r
that General Mdluli an investigation was commissioned by the Deputy
Provincial Commissioner Engelbrecht into a – in essence a cold case
and that was the death of Oupa Ramogibe.

Now that death that

occurred in 2002. It has been sent for inquest and nothing further had
happened.
20

CHAIRPERSON: Ja no I know that part.
A D V S U S A N W E N T Z E L : Yo u k n o w t h e b a c k g r o u n d ?
CHAIRPERSON: No I know I have read the whole statement.
A D V S U S A N W E N T Z E L : Ye s . S o w h a t h e s a y s i s a f t e r i t h e i s t a s k e d
with this resuscitation of this investigation.
Chair:

Page 6 of 42

He says in paragraph 32

16 JANUARY 2020 – DAY 200
“On

the

same

day

of

17

August

2009

Divisional

Commissioner Raymond Dlala drafted a covering letter to
send the missive from Engelbrecht to Deputy National
Commissioner Dramat for attention.
the investigation to me.
executed it.

Dramat assigned

I accepted the instruction and

I had no slightest idea that this would

become a career limiting undertaking.”
So …(intervenes).
CHAIRPERSON:
10

I know all of that.

I know all of that.

What I am

l o o k i n g f o r i s t h e c o n n e c t i o n w i t h t h e Te r m s o f R e f e r e n c e .

There

certainly are certain portions.
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:

Of his statement that may appear to be the kind of

thing we are investigating.
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:

But my impression is that a large portion of the

statement might not be.

But it may be that with further investigation

and deeper investigation something can be found that would make it
q u i t e c l e a r t h a t i t i s w h a t w e a r e l o o k i n g f o r. P a r t o f t h e c o n c e r n I h a v e
20

w i t h u s i n g D o c t o r L e b e y a ’s r o l e i n t h a t i n v e s t i g a t i o n i s b e – i s t h a t h e
says later on he recommended that it should be done by Mr Ntlemeza
and it went to Mr Ntlemeza.
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: Which seems to suggest to me that he did not take it
to any conclusion that anybody could feel to justify saying the way he

Page 7 of 42

16 JANUARY 2020 – DAY 200
d i d t h a t i n v e s t i g a t i o n o ff e n d e d s o a n d s o a n d s o a n d s o t h e r e f o r e d i d a ,
b, c, d. It seems he did it – or rather it was with him for a certain time
but then he moved it to Mr Ntlemeza. Then Ntlemeza continued with it,
reached a certain conclusion which involves saying there was a
c o n s p i r a c y. A n u m b e r o f p e o p l e I t h i n k i n c l u d i n g D o c t o r L e b e y a w e r e
involved in a conspiracy against Mdluli – Mr Mdluli.
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON:

And then later on an investigation initiated by the

Minister I cannot – I think, I cannot remember which one, the Minister
10

r e s u l t e d i n a f i n d i n g t h a t r e j e c t e d N t l e m e z a – M r N t l e m e z a ’s f i n d i n g o f
a c o n s p i r a c y a n d i n t h a t w a y c l e a r e d D o c t o r L e b e y a a n d p o l i c e o ff i c e r s
who had been alleged to have had a conspiracy against Mr Mdluli. So I
got the impression that maybe some deeper investigation may need to
be done to see whether there is enough that ensures that most of what
i s i n t h e s t a t e m e n t f a l l s w i t h i n t h e Te r m s o f R e f e r e n c e . I t m a y b e t h a t
y o u r i n v e s t i g a t o r s w i l l s a y, n o d e e p i n v e s t i g a t i o n w a s d o n e t h e r e i s
nothing more that can be done. This is all that there is in which case
t h e n o n e c a n m a k e a d e c i s i o n k n o w i n g t h a t t h e r e i s n o t h i n g f u r t h e r.
For example I do not know maybe you do know has any investigator

20

g o n e t o M s P h i y e g a a n d s a y, w h y d i d y o u d o t h i s t o D o c t o r L e b e y a ?
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: Why did you get your junior to deal with it, to talk to
him about a, b, c, d? Why did you not include him and his department
or his unit in the Dumela session? There are a number of things that
could be asked.

Now it may be that she is interviewed and she is

Page 8 of 42

16 JANUARY 2020 – DAY 200
asked about these things.

Maybe some answers that she will give

could help clear this thing up. For argument sake what if she were to
say it is because I had been told to side-line him and I had been told by
so and so and so and so.

Until you interview her you do not know

whether that is what she will tell you.
ADV SUSAN WENTZEL:

Chair in regard to that the previous

Commissioner has actually approached the Commission pursuant to the
receipt of a Rule 3.3 Notice.

She has said she would like to make a

statement and she has indicated in that statement; I saw this I think a
10

day or two ago, she has indicated in that statement that she – that the
G e n e r a l i s i n c o r r e c t i n h i s p e r c e p t i o n . I t w a s j u s t a p e r s o n a l d i ff e r e n c e
that they had between each other that essentially there was – it had
nothing to do with a sinister motive. That is her version. So I do not
believe if – and obviously she will now be consulted because she has
asked for that and I will certainly make sure that she is consulted. But
from understanding what she has said in response to the Rule 3.3
Notice her version is that there was no sinister motive.

I was not

punishing him because he was involved in the Mdluli investigation.
CHAIRPERSON:
20

That is very important.

But it goes back to the

question I was asking. Has she been approached?
ADV SUSAN WENTZEL: As yet she has not.
CHAIRPERSON: And …(intervenes).
ADV SUSAN WENTZEL: Perhaps …(intervenes).
CHAIRPERSON: And it is wrong that she has not been approached.
A D V S U S A N W E N T Z E L : Ye s .

Page 9 of 42

16 JANUARY 2020 – DAY 200
C H A I R P E R S O N : T h e L e g a l Te a m i s w r o n g n o t t o h a v e d o n e t h a t .
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: The investigators are wrong not to have done that but
m o r e t h a n t h e i n v e s t i g a t o r s I b l a m e t h e L e g a l Te a m .
A D V S U S A N W E N T Z E L : Ye s I u n d e r s t a n d .
C H A I R P E R S O N : B e c a u s e t h e L e g a l Te a m m u s t g u i d e t h e i n v e s t i g a t o r s .
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:
things.
10

When they read this statement they see all of these

Before arrangements are made for the witness to come and

g i v e e v i d e n c e t h e L e g a l Te a m m u s t s a y, h a n g o n t h e r e a r e t o o m a n y
things.
ADV SUSAN WENTZEL: Let us get her version.
CHAIRPERSON: Ja. But more than anything.
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:

M e m b e r s o f t h e L e g a l Te a m m u s t a s k w i t h r e g a r d t o

e a c h w i t n e s s h o w d o e s t h i s w i t n e s s ’ e v i d e n c e f i t i n t o t h e Te r m s o f
Reference?
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: For each witness that question must be asked. And
20

n o m e m b e r o f t h e L e g a l Te a m s h o u l d n o t b e r e a d y t o d e a l w i t h t h a t
question.
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: Now if Ms Phiyega says as you say she has said that
i t w a s b e c a u s e o f p e r s o n a l d i ff e r e n c e s .
ADV SUSAN WENTZEL: H’mm.

Page 10 of 42

16 JANUARY 2020 – DAY 200
CHAIRPERSON:

It

goes

back

to

the

question

I

am

raising

…(intervenes).
A D V S U S A N W E N T Z E L : Ye s i t d o e s .
C H A I R P E R S O N : To s a y, t h e w a y t h a t D o c t o r L e b e y a w a s i l l t r e a t e d a s
r e f l e c t e d i n t h e s t a t e m e n t c a n i t b e s a i d t h a t i t f a l l s w i t h i n t h e Te r m s o f
Reference?

Was it corruption?

Was it fraud?

Was it State Capture?

Or could it be that maybe she just did not like him for whatever reason
which would be wrong itself.
A D V S U S A N W E N T Z E L : Ye s .
10

C H A I R P E R S O N : B u t n o t e v e r y t h i n g t h a t i s w r o n g f a l l s w i t h i n t h e Te r m s
of Reference of the Commission.
A D V S U S A N W E N T Z E L : Ye s .
C H A I R P E R S O N : Yo u s e e a n d … ( i n t e r v e n e s ) .
ADV SUSAN WENTZEL: I understand that.
C H A I R P E R S O N : A n d t h e L e g a l Te a m s h o u l d d o t h i s .
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: We should not have a situation where a day has been
set aside for me to hear the evidence of a witness and then we cannot
hear and the day is wasted because there is a problem about whether

20

t h e e v i d e n c e o f t h a t w i t n e s s s h o u l d – f a l l s w i t h i n t h e Te r m s o f
Reference of the Commission.
ADV SUSAN WENTZEL:

Ye s C h a i r I u n d e r s t a n d a n d I d o a p p r e c i a t e

that and I must say that I did, it was concerning me and that is why
when I consulted this morning again with General Lebeya I said, I am
c o n c e r n e d t h a t t h i s – d o e s t h i s f a l l w i t h i n t h e Te r m s o f R e f e r e n c e . B u t

Page 11 of 42

16 JANUARY 2020 – DAY 200
I agree perhaps we need to do further investigation. But if perhaps the
matter could stand down so that I could just discuss it with General
Lebeya and he can also give me just a 15 minute adjournment so that I
can just discuss this with him and find out if there are facts that he can
elude to that could further support a direct link.

Because I – if there

…(intervenes).
CHAIRPERSON:

H o w i s t h a t g o i n g t o h e l p f o r t o d a y ’s p u r p o s e s ?

If

t h o s e f a c t s a r e n o t h e r e a l r e a d y.
A D V S U S A N W E N T Z E L : Ye s I u n d e r s t a n d t h e n w e h a v e p r o b l e m s w i t h
10

Rule 3.3. Notices.
CHAIRPERSON:

It is work that should have been done a long time

ago.
A D V S U S A N W E N T Z E L : Ye s .
C H A I R P E R S O N : I s e e t h a t h i s a ff i d a v i t w a s d e p o s e d t o o n t h e 11 t h o f
November 2019.
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: That means it has been more than two months and I
assume that this is now – so here is a statement that was prepared that
is on the letterheads of the Commission or that has been on the
20

Commission.

I assume that the Commission investigators and the

L e g a l Te a m g o t i t s o o n a f t e r t h a t a n d s o m e b o d y i n t h e L e g a l Te a m a s
soon as it arrived should have read it and asked himself or herself the
question that I am asking. And all of that should have been dealt with
i n N o v e m b e r, l o n g b e f o r e n o w.
A D V S U S A N W E N T Z E L : Ye s C h a i r I d o a p p r e c i a t e t h a t a n d I m u s t s a y

Page 12 of 42

16 JANUARY 2020 – DAY 200
that when I originally read the statement I – because of what was said
in that opening statement I believed that there was this connection and
he was in essence being punished for his involvement in the Mdluli
investigation.
CHAIRPERSON: Where did you – what facts in the statement did you
base that on?
ADV SUSAN WENTZEL: Where he says which I quoted to you earlier
C h a i r. I t h i n k i t w a s p a r a g r a p h 1 5 .
CHAIRPERSON:
10

Ja but you cannot base your conclusion on that

simply bold allegation.
A D V S U S A N W E N T Z E L : Ye s I … ( i n t e r v e n e s ) .
C H A I R P E R S O N : Yo u h a v e g o t t o s a y w h e r e a r e t h e f a c t s t h a t s u p p o r t
that allegation?
A D V S U S A N W E N T Z E L : Ye s . A n d … ( i n t e r v e n e s ) .
CHAIRPERSON: And I do not see them.
ADV SUSAN WENTZEL:

And Chair in preparing again through the

statement last night after the testimony finished that was – that very
fact concerned me. And I read it again and I looked again and I looked
carefully and it did concern me. So …(intervenes).
20

C H A I R P E R S O N : Yo u s e e … ( i n t e r v e n e s ) .
ADV SUSAN WENTZEL:

I have to agree with you because it is the

issue that I canvassed. I also must accept that I should have realised
that earlier and I was wrong in that respect. I must accept that and I
apologise for that.
CHAIRPERSON:

Ye s y o u s e e i f t h a t i s s u e – s o m e b o d y i n t h e L e g a l

Page 13 of 42

16 JANUARY 2020 – DAY 200
Te a m h a d a p p l i e d h i s o r h e r m i n d p r o p e r l y o n t h i s s t a t e m e n t s o o n a f t e r
it had arrived this could have been avoided.
A D V S U S A N W E N T Z E L : Ye s I a g r e e .
CHAIRPERSON: This could have been avoided. And as it seems now
we are going to lose a day and we do not have a lot of time.
A D V S U S A N W E N T Z E L : Ye s i t i s u n f o r t u n a t e .
C H A I R P E R S O N : E v e r y h o u r c o u n t s . W e n e e d e v e r y d a y.
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:
10

Please pass on the message to all the members of

t h e L e g a l Te a m t h a t t h i s t y p e o f h o m e w o r k m u s t b e d o n e .

So maybe

before I decide whether there will be a short break or not let me talk to
Doctor Lebeya.

Doctor Lebeya you understand the exchange that I

have had with counsel?
D O C T O R L E B E YA : I d o C h a i r p e r s o n .
CHAIRPERSON:

Ye s . I t m a y b e t h a t f r o m y o u r s i d e y o u s e e t h e

connection that I am struggling to see at the moment but it may be that
it is because of other things that you know that might not be in the
s t a t e m e n t . I d o n o t k n o w. B u t y o u u n d e r s t a n d w h a t t h e c o n c e r n i s . I t
is not to say there is nothing in the statement that could fall within the
20

Te r m s o f R e f e r e n c e . S o m e o f i t l o o k s l i k e i t d o e s b u t a l o t o f i t d o e s
n o t s e e m t o f a l l w i t h i n t h e Te r m s o f R e f e r e n c e . B u t w h a t I t h i n k m a y b e
I should do is adjourn for a short break to enable counsel to have a
discussion with you and the two of you can discuss. When I come back
we can then see where we go.
D O C T O R L E B E YA :

Thank you Chairperson.

Page 14 of 42

16 JANUARY 2020 – DAY 200
CHAIRPERSON: Is that alright?
D O C T O R L E B E YA : T h a n k y o u C h a i r p e r s o n .
CHAIRPERSON: Ja. And if we end up not being able to continue today
i t i s n o t b e c a u s e o f a n y t h i n g w r o n g y o u h a v e d o n e . Yo u h a v e n o t d o n e
a n y t h i n g w r o n g . I a m g o i n g t o t a k e a n a d j o u r n m e n t n o w. I s 1 5 m i n u t e s
going to be enough or must we take a little longer than that?
ADV SUSAN WENTZEL: Perhaps could we take 30 minutes?
CHAIRPERSON: 30 minutes.
ADV SUSAN WENTZEL: Is that long enough?
10

CHAIRPERSON:

O k a y i t i s 11 : 0 0 s o w e w i l l a d j o u r n u n t i l 11 : 3 0 .

We

adjourn.
REGISTRAR: All rise.
I N Q U I RY A D J O U R N S
I N Q U I RY R E S U M E S
C H A I R P E R S O N : Ye s M s W e n t z e l .
ADV SUSAN WENTZEL: (Indistinct).
CHAIRPERSON: Switch on your mic.
A D V S U S A N W E N T Z E L : S o r r y. T h a n k y o u C h a i r.
CHAIRPERSON: H’mm.
20

ADV SUSAN WENTZEL:

C h a i r, b e f o r e I a d d r e s s y o u c o u n s e l i s h e r e

appearing for General Phiyega.

He would like just to place this on

record. Thank you.
C H A I R P E R S O N : Ye s . W e s h o u l d h a v e t a k e n c a r e o f t h a t r i g h t a t t h e
beginning.
A D V S U S A N W E N T Z E L : Ye s .

Page 15 of 42

16 JANUARY 2020 – DAY 200
C H A I R P E R S O N : O k a y. L e t h i m c o m e f o r w a r d .
ADV SUSAN WENTZEL: Unfortunately he only indicated that to me.
C H A I R P E R S O N : H e d i d n o t m e n t i o n i t t o y o u ? O h o k a y.
ADV SUSAN WENTZEL: During this adjournment. Thank you.
C H A I R P E R S O N : O k a y. A l r i g h t .
A D V R AV I N D R A M A N I K L A L L : G o o d m o r n i n g J u d g e .
CHAIRPERSON: Good morning.
A D V R AV I N D R A M A N I K L A L L : J u d g e , m y n a m e i s M a n i k l a l l .
C H A I R P E R S O N : Ye s .
10

A D V R AV I N D R A M A N I K L A L L : I h a v e b e e n o n t h e l a s t o c c a s i o n .
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

Judge, I have been instructed by

General Phiyega it is in relation to the witness’ evidence to be led –
Dr Lebeya …(intervenes).
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L : A n d m o s t o f t h e i s s u e s y o u h a v e a l r e a d y
raised it.
CHAIRPERSON: H’mm.
A D V R AV I N D R A M A N I K L A L L : I a m n o t g o i n g t o r e p e a t … ( i n t e r v e n e s ) .
20

C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

Some of the issues that we had also

come across as well.
C H A I R P E R S O N : Ye s . Ye s .
A D V R AV I N D R A M A N I K L A L L :

But

Judge

…(intervenes).

Page 16 of 42

just

to

point

out

16 JANUARY 2020 – DAY 200
CHAIRPERSON: H’mm.
A D V R AV I N D R A M A N I K L A L L : O n e o f t h e i m p o r t a n t a s p e c t s i s t h a t m y
learned

friend,

I

think,

during

her

address

mentioned

that

General Phiyega had in fact made contact with the Commission
…(intervenes).
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

And the Secretary of the Commission

…(intervenes).
C H A I R P E R S O N : Ye s .
10

A D V R AV I N D R A M A N I K L A L L :

But

beyond

that

Judge

she

also

requested further details …(intervenes).
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

Of some of the allegations that were

c o n t a i n e d i n t h e a ff i d a v i t … ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L : A n d i n o r d e r t o … ( i n t e r v e n e s ) .
CHAIRPERSON: Did you know how long ago she made contact with the
Commission?
A D V R AV I N D R A M A N I K L A L L :
20

She made contact – the notice was

served on her on the 13th of December …(intervenes).
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L : 2 0 1 9 .
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

The contact was – she made contact

with them in writing via e-mail …(intervenes).

Page 17 of 42

16 JANUARY 2020 – DAY 200
CHAIRPERSON: H’mm.
A D V R AV I N D R A M A N I K L A L L : O n t h e 2 3 r d o f D e c e m b e r … ( i n t e r v e n e s ) .
C H A I R P E R S O N : O k a y.
A D V R AV I N D R A M A N I K L A L L : 2 0 1 9 .
C H A I R P E R S O N : O k a y.
A D V R AV I N D R A M A N I K L A L L :

Unfortunately there has not been an

acknowledgement nor …(intervenes).
CHAIRPERSON: H’mm.
A D V R AV I N D R A M A N I K L A L L : A r e s p o n s e … ( i n t e r v e n e s ) .
10

CHAIRPERSON: H’mm.
A D V R AV I N D R A M A N I K L A L L : A n d t h a t w a s s o m e o f t h e h o u s e k e e p i n g
issues that I was going to address …(intervenes).
C H A I R P E R S O N : Ye s . Ye s .
A D V R AV I N D R A M A N I K L A L L : J u d g e o n … ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L : E a r l i e r … ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

But I did not want to interrupt your

…(intervenes).
20

CHAIRPERSON: My - my discussion with …(intervenes).
A D V R AV I N D R A M A N I K L A L L : Ye s .
C H A I R P E R S O N : Ye s . N o . T h a t i s f i n e .
A D V R AV I N D R A M A N I K L A L L :

Thank you Judge and those had been

l i s t e d a n d i f t h e r e a r e a n y d i ff i c u l t i e s I w i l l f o r w a r d t h e v e r y s a m e e mail to my colleagues again …(intervenes).

Page 18 of 42

16 JANUARY 2020 – DAY 200
C H A I R P E R S O N : Ye s . O k a y.
A D V R AV I N D R A M A N I K L A L L : B u t o n e o f t h e m o s t i m p o r t a n t i s s u e s i s
t h a t J u d g e I h a v e a l s o b e e n a s k e d t o p l a c e o n r e c o r d y e s t e r d a y ’s
evidence from the previous witness as well.

I think it is retired

C o l o n e l Va n L o g g e r e n b e r g .
C H A I R P E R S O N : Va n L o g g e r e n b e r g . J a .
A D V R AV I N D R A M A N I K L A L L : J u d g e , n e i t h e r G e n e r a l P h i y e g a n o t t h e
K w a Z u l u - N a t a l P r o v i n c i a l C o m m i s s i o n e r, N g o b e n i , h a v e b e e n g i v e n t h e
Rule 3.3 Notice.
10

CHAIRPERSON: Is that so?
A D V R AV I N D R A M A N I K L A L L :

That is correct Judge.

So that is the

…(intervenes).
CHAIRPERSON: H’mm.
A D V R AV I N D R A M A N I K L A L L :

One

of

the

aspects

that

I

was

specifically asked to raise …(intervenes).
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L : W i t h t h e C o m m i s s i o n t h a t i t c o u l d b e a
housekeeping issue …(intervenes).
C H A I R P E R S O N : Ye s .
20

A D V R AV I N D R A M A N I K L A L L :

But it is absolutely prejudicial because

…(intervenes).
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L : T h e y l e a r n t a b o u t i t i n t h e p r e s s r e l e a s e
…(intervenes).
C H A I R P E R S O N : Ye s .

Page 19 of 42

16 JANUARY 2020 – DAY 200
A D V R AV I N D R A M A N I K L A L L : Ye s t e r d a y … ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L : A n d i t i s q u i t e u n f a i r … ( i n t e r v e n e s ) .
CHAIRPERSON: Ja.
A D V R AV I N D R A M A N I K L A L L : A n d p r e j u d i c i a l t o t h e m … ( i n t e r v e n e s ) .
CHAIRPERSON: Ja.
A D V R AV I N D R A M A N I K L A L L : A n d i t h a s c e r t a i n c o n s e q u e n c e s a s w e l l
…(intervenes).
CHAIRPERSON: H’mm.
10

A D V R AV I N D R A M A N I K L A L L : B u t t h e y d o w i s h t o p l a c e t h e i r r e s p o n s e
o n a ff i d a v i t .
C H A I R P E R S O N : Ye s . Ye s .
A D V R AV I N D R A M A N I K L A L L :

So

they

would

appreciate

…(intervenes).
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

The relevant notices to enable them to

take …(intervenes).
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :
20

The necessary steps in terms of Rule

3.3.
C H A I R P E R S O N : Ye s . Ye s .
A D V R AV I N D R A M A N I K L A L L :

Ye s .

Judge and then the next aspect

that I was asked to raise in the Commission and this is not to repeat
anything that Judge has earlier addressed …(intervenes).
C H A I R P E R S O N : Ye s .

Page 20 of 42

16 JANUARY 2020 – DAY 200
A D V R AV I N D R A M A N I K L A L L : M y l e a r n e d f r i e n d … ( i n t e r v e n e s ) .
CHAIRPERSON: H’mm.
A D V R AV I N D R A M A N I K L A L L :

Was that the – both – especially

General Phiyega in respect of this witness has raised pertinent
requests and she would want them to be attended to as quick as
p o s s i b l e s o t h a t s h e c a n f i l e h e r a ff i d a v i t a n d o b v i o u s l y i n t h e p r o c e s s
o f a p p l y i n g t o c r o s s - e x a m i n e , i f n e c e s s a r y, i t m i g h t v e r y w e l l b e s o t h a t
the witness does not want to lead certain evidence …(intervenes).
C H A I R P E R S O N : Ye s .
10

A D V R AV I N D R A M A N I K L A L L : O r b e c r o s s - e x a m i n e d .
C H A I R P E R S O N : Ye s . Ye s .
A D V R AV I N D R A M A N I K L A L L : A n d h e h a s t h e r i g h t a s w e l l .
C H A I R P E R S O N : Ye s . Ye s .
A D V R AV I N D R A M A N I K L A L L :

So therefore it is quite imperative that

the Commission at least request my learned friend, if not all the – that
t h e L e g a l Te a m o r t h e i n v e s t i g a t o r s f u r n i s h u s w i t h t h o s e – t h a t
information and the various notices that I have mentioned.
C H A I R P E R S O N : Ye s . N o . T h a t s h o u l d b e d o n e , b u t a s y o u h e a r d m e
say earlier on …(intervenes).
20

A D V R AV I N D R A M A N I K L A L L : Ye s .
CHAIRPERSON:

In – investigating means that when you hear one

person saying certain things about another person …(intervenes).
A D V R AV I N D R A M A N I K L A L L : Ye s .
C H A I R P E R S O N : Yo u a l s o g o t o t h e o t h e r p e r s o n a n d s a y w h a t d o y o u
know about this. This is what I am hearing. Hear what that person has

Page 21 of 42

16 JANUARY 2020 – DAY 200
t o s a y.

So that you have a full and balanced picture of what the

position is.

So that is why I raised the concern when I heard that

General Phiyega had not been interviewed in regard to these matters.
So that when a matter is brought here there is – there has
been proper investigation. Ms Wentzel already told me that Ms Phiyega
has said that whatever happened between her and Dr Lebeya was
personal.
A D V R AV I N D R A M A N I K L A L L : M a y … ( i n t e r v e n e s ) ?
C H A I R P E R S O N : I f I u n d e r s t o o d h e r c o r r e c t l y.
10

A D V R AV I N D R A M A N I K L A L L :

Judge,

may

I

just

correct

that

deception?
C H A I R P E R S O N : J a . N o . C o r r e c t i t l a t e r.
A D V R AV I N D R A M A N I K L A L L : I d o n o t t h i n k … ( i n t e r v e n e s ) .
CHAIRPERSON: Correct it later …(intervenes).
A D V R AV I N D R A M A N I K L A L L : O k a y.
CHAIRPERSON:

But what needs to be done is confirmation that the

things that Dr Lebeya says were done to him. Were done to him. As
far

as

Ms Phiyega

is

concerned

what

her

own

version

and

circumstances are which she put forward about those things so that we
20

have a full picture.
She might say I did not do those things or yes I did them, but
I was justified because of a, b, c, d and it is not necessarily because of
any corruption or whatever and this witness might be able after being
furnished with what she has to say no, no, no.

That is not true.

and look at a, b, c, d which will contradict what she is saying.

Page 22 of 42

Go
That

16 JANUARY 2020 – DAY 200
kind of investigation should be done.
A D V R AV I N D R A M A N I K L A L L : I a g r e e w i t h J u d g e .
CHAIRPERSON: H’mm.
A D V R AV I N D R A M A N I K L A L L : T h a t i s – t h a t o u g h t t o h a v e b e e n d o n e
on a preliminary basis …(intervenes).
CHAIRPERSON: H’mm. H’mm.
A D V R AV I N D R A M A N I K L A L L : B u t o n e o f t h e a s p e c t s t h a t I m a y r a i s e
and I think it is very pertinent that we correct it. She has not made the
statement nor has she agreed Judge and that is why I think the
10

perception has to be corrected.
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L : S h e h a s n o t a g r e e d … ( i n t e r v e n e s ) .
CHAIRPERSON: H’mm.
A D V R AV I N D R A M A N I K L A L L : T h a t s h e h a s d o n e a n y o f t h e t h i n g s t h a t
are being complained of.
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

In the manner in which it is being

complained of …(intervenes).
C H A I R P E R S O N : Ye s . O k a y.
20

A D V R AV I N D R A M A N I K L A L L :

And she merely wanted an opportunity

…(intervenes).
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

To h a v e a l l t h e s e d o c u m e n t s f u r n i s h e d

to her …(intervenes).
CHAIRPERSON: Ja.

Page 23 of 42

16 JANUARY 2020 – DAY 200
A D V R AV I N D R A M A N I K L A L L :

In order that she may respond to the

a l l e g a t i o n s c o n t a i n e d i n t h e a ff i d a v i t a n d o b v i o u s l y t h e n i t c a n b e d e a l t
with more comprehensively …(intervenes).
C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

And Judge you are correct.

investigation is absolutely required.

A proper

No one has approached her to

date in that respect.
CHAIRPERSON:

O k a y.

No.

Thank you very much.

I am sure

Ms Wentzel will talk to me about the complaint relation – relating to the
10

Provincial – former Provincial – is it? She is former now?
A D V R AV I N D R A M A N I K L A L L : S h e i s f o r m e r P r o v i n c i a l C o m m i s s i o n e r.
CHAIRPERSON: Commissioner …(intervenes).
A D V R AV I N D R A M A N I K L A L L : G e n e r a l N g o b e n i . Ye s .
CHAIRPERSON:

Ja. As well as somebody else.

Yo u m e n t i o n e d t w o

people.
A D V R AV I N D R A M A N I K L A L L :

I also mentioned General Phiyega and

Ngobeni did not …(intervenes).
CHAIRPERSON: Oh, yes.
A D V R AV I N D R A M A N I K L A L L : G e t t h e R u l e 3 . 3 N o t i c e s … ( i n t e r v e n e s ) .
20

C H A I R P E R S O N : Ye s .
A D V R AV I N D R A M A N I K L A L L :

In respect of the previous witness

…(intervenes).
C H A I R P E R S O N : O h . O k a y. Ye s .
A D V R AV I N D R A M A N I K L A L L : T h e f o r m e r C o l o n e l Va n L o g g e r e n b e r g .
C H A I R P E R S O N : Ye s . O k a y. O k a y.

Page 24 of 42

16 JANUARY 2020 – DAY 200
A D V R AV I N D R A M A N I K L A L L : T h a n k y o u C h a i r.
CHAIRPERSON: Thank you. Ms Wentzel.
ADV SUSAN WENTZEL:

T h a n k y o u C h a i r.

C h a i r, I d o n o t h a v e

…(intervenes).
CHAIRPERSON:

Do you want to deal with this first before you

…(intervenes).
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: Report back?
ADV SUSAN WENTZEL: I will – if I could deal with this first.
10

CHAIRPERSON: H’mm.
ADV SUSAN WENTZEL:

It would be convenient.

First with regard to

the fact that Rule 3.3 Notices were not sent to General Riah Phiyega or
the

former

Provincial

Commissioner Ngobeni

Va n L o g g e r e n b e r g ’s s t a t e m e n t .

with

regard

to

The reason for that is that they are

actually not mentioned in the statement and the link that the witness
made yesterday during his testimony was not something he had
indicated before.
It was something he said following the testimony and as a
result of that I had intended that a Rule 3.3 Notice would be sent so
20

that they could know that on this date he testified and this is what he
said and there could then be a response.

So I think that address is

why that occurred.
The second is the issue of the request for information. I also
do not have the letter here in front of me, but from what I recall. It is
not a request for documents that are referred to in the statement. It is

Page 25 of 42

16 JANUARY 2020 – DAY 200
a r e q u e s t f o r f u r t h e r d o c u m e n t s a s i n G e n e r a l L e b e y a ’s l e t t e r o f
appointment and that kind of thing.
Now whilst the Commission will always be cooperative and try
and assist people who are implicated to obtain documentation. It is not
the role of the Commission to then carry out fact or document acquiring
exercises on behalf of every implicated person and as I have
understood it.
It is generally the attitude if we have those documents we will
provide them and if we can easily facilitate you getting those
10

documents as in the instance.

If it is a – his formal letter of

appointment etcetera. That – I am not saying that is definitely one of
t h e t h i n g s , b u t i t i s w h a t I t h i n k I r e m e m b e r.
CHAIRPERSON: Ja. Ja. Well …(intervenes).
ADV SUSAN WENTZEL:

That we can approach General Lebeya and

those documents can be provided.
CHAIRPERSON: Ja. The Commission would have no business having
the letter of appointment – his letters of appointment.
ADV SUSAN WENTZEL: No.
CHAIRPERSON: Ja.
20

ADV SUSAN WENTZEL: So …(intervenes).
C H A I R P E R S O N : Ye s .
ADV SUSAN WENTZEL:

So that is the one other aspect.

When one

has regard to the other aspect …(intervenes).
CHAIRPERSON:

W e l l t h e r e i s t h e f o r m e r P r o v i n c i a l C o m m i s s i o n e r.

Was she given – was she sent a Rule 3.3 Notice in regard to

Page 26 of 42

16 JANUARY 2020 – DAY 200
C o l o n e l Va n L o g g e r e n b e r g ’s e v i d e n c e ?
ADV SUSAN WENTZEL:

I do not believe so and I do not have the

statement in front of me and I do not like to make submissions unless I
can double check I am correct, but …(intervenes).
CHAIRPERSON:

W h y w o u l d i t n o t h a v e b e e n s e n t t o h e r, b e c a u s e

G e n e r a l – C o l o n e l Va n L o g g e r e n b e r g ’s e v i d e n c e a n d s t a t e m e n t o r a t
least he – the evidence he gave with regard to various certain
documents …(intervenes).
A D V S U S A N W E N T Z E L : Ye s .
10

C H A I R P E R S O N : D i d i m p l i c a t e t h e f o r m e r P r o v i n c i a l C o m m i s s i o n e r.
ADV SUSAN WENTZEL:

It certainly did.

I understand from what I

r e c a l l t h a t e v e r y – i n r e s p e c t o f Va n L o g g e r e n b e r g ’s e v i d e n c e t h e l i s t –
every single person for whom a Rule 3.3 Notice was prepared was sent
and received a notice.
CHAIRPERSON:

But that does not answer the question.

Was a Rule

3.3 Notice prepared and sent in regard to the former Provincial
Commissioner?
ADV SUSAN WENTZEL:

I – that investigate – I have asked the

investigator to go and check that. As I indicated to you I am not sure if
20

I indicated in Chambers or at the hearing yesterday I was not the
evidence leader who prepared those Rule 3.3 Notices. I cannot make a
submission to you if I – unless I know it is true or false.

I need to

verify that. I just …(intervenes).
C H A I R P E R S O N : Ye s , b u t i t m a y o r m a y n o t b e t h a t s o m e b o d y e l s e h a d
dealt with the Rule 3.3 Notices, but …(intervenes).

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16 JANUARY 2020 – DAY 200
ADV SUSAN WENTZEL: I led the evidence.
CHAIRPERSON: If you are going to lead the evidence …(intervenes).
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:

One of the things you should satisfy yourself on is

that …(intervenes).
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: Anyone who is going to be implicated by the evidence
of the witness …(intervenes).
ADV SUSAN WENTZEL: H’mm.
10

CHAIRPERSON:

Was sent a 3.3 Notice.

Yo u h a v e g o t t o s a y

…(intervenes).
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON:

Who are the people who are going to be implicated

here …(intervenes).
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: Were all the 3.3 Notices sent?

So that if they were

not sent …(intervenes).
ADV SUSAN WENTZEL: H’mm.
C H A I R P E R S O N : Yo u c a n t h e n t a k e s t e p s . Yo u c a n t h e n m a k e u p y o u r
20

mind what you want to do about that …(intervenes).
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: And I can be informed …(intervenes).
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: That there is a problem in regard to the witness – the
evidence of that witness, because you have discovered that – the

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16 JANUARY 2020 – DAY 200
relevant 3.3 Notices …(intervenes).
ADV SUSAN WENTZEL: H’mm.
C H A I R P E R S O N : W e r e n o t s e n t . W e – I h a v e t o r e l y o n t h e L e g a l Te a m
…(intervenes).
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON:

That they would have checked all of those things

…(intervenes).
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: And that if there is a problem they will tell me.
10

ADV SUSAN WENTZEL:

C h a i r, I c a n n o t b e l i e v e t h a t R u l e 3 . 3 N o t i c e

was not sent, but I need to check that and perhaps by the time I finish
addressing you on the other aspect the investigator will be back and I
can have an answer for you on that …(intervenes).
CHAIRPERSON: H’mm.
ADV SUSAN WENTZEL: Because if it was sent then it is not an issue
that needs to be further addressed. If it was not sent …(intervenes).
CHAIRPERSON: Well if it was sent …(intervenes).
ADV SUSAN WENTZEL: Is that it certainly is something.
CHAIRPERSON: And counsel says – they say they did not get it. Then
20

there would need to be further investigation as to …(intervenes).
A D V S U S A N W E N T Z E L : Ye s . A b s o l u t e l y.
CHAIRPERSON: How that came about …(intervenes).
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: That it was sent, but they did not receive it.
A D V S U S A N W E N T Z E L : A b s o l u t e l y.

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16 JANUARY 2020 – DAY 200
C H A I R P E R S O N : O k a y. N o w w h a t i s y o u r r e p o r t b a c k ?
A D V S U S A N W E N T Z E L : C h a i r, t h e – I h a v e h a d t h e o p p o r t u n i t y i n t h e
b r e a k t h a t y o u a ff o r d e d m e t o d i s c u s s t h e i s s u e s r a i s e d b y y o u w i t h
General Lebeya and what he says is that further investigation is not
going to reveal a direct link.

He does not believe.

What his view is

that his statement falls within the terms of reference, because of a
number of factors which constitutes circumstantial evidence when
viewed together you see the picture that he was targeted.
P e r h a p s n o t s o m u c h f o r t h e i n v e s t i g a t i o n i n t o M d l u li ’s
10

wrongdoings

at

Crime

Intelligence,

but

because

of

his

alleged

involvement in a conspiracy against General Mdluli and you will
remember from the papers Chair that once these investigations had
commenced and General Mdluli was suspended.
He addressed a letter to the former President and he said
these are the Generals who are conspiring against me and he attached
a ff i d a v i t s b y a p e r s o n s a y i n g t h a t t h e y h a d b e e n t o l d b y a w i t n e s s ,
Ronnie Naidoo, that they had conspired with General Cele and the aim
was to get rid of Mdluli and the implication is that all these
irregularities and – are trumped up charges and he is being pursued.
20

Disciplinary proceedings are being pursued.
He is being charged in this – in the murder investigation
again.

Ntlemeza has given a report that says that this is also as a

result of a conspiracy against him and Chair you will remember the
evidence of what is the witnesses who testified who are called
colloquially the spooks and particularly the evidence of Mo Shaik.

Page 30 of 42

16 JANUARY 2020 – DAY 200
Where he said that when they were at the Secret Service
Agency they were tasked with investigating these allegations of a
conspiracy against General Mdluli and they say they went to see the
former President and they told him about their investigations and they
assured him that their investigations had revealed that there was no
s u c h c o n s p i r a c y.
We do know that the former President refused to accept that
and he believed that as he has averred himself in these proceedings
that there is a conspiracy against him. He believes too that there was
10

a conspiracy against General Mdluli.

One then also knows that the

former President is as referred to by you Chair earlier that he says who
is this General Lebeya, Lebeya, Lebeya.
I keep hearing his name. So yes, just on its own we – on –
cannot really put anything to it, but one then says the evidence of the
witness is that after Riah Phiyega is appointed his life then becomes
intolerable and it would appear if you look at the facts and to a
steadfast refusal to accept that she was side-lining him.
T h a t s h e w a s i n e ff e c t d e m o t i n g h i m a n d w h e n y o u l o o k a t t h e
facts and those are the facts. The correspondence and the letters are
20

there. That she says there is – are only ranks among Colonels.
C H A I R P E R S O N : Ye s . Yo u r e m e m b e r I s a i d r i g h t a t t h e b e g i n n i n g t h a t
there can be no doubt that if what Dr Lebeya says in his statement is
true.
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: There can be no doubt that over a long period he was

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16 JANUARY 2020 – DAY 200
side-lined.

He was ill-treated.

He was prejudiced in many ways and

the concern I had was does not appear to come out clearly why that
was the case and actually I wanted to have a look. I think there is a
p a r a g r a p h t o w a r d s t h e e n d o f D r L e b e y a ’s a ff i d a v i t w h e r e h e a l s o s a y s
something that I interpreted as something that may lend credence to
any proposition that might be advanced.
That this was done to him for personal dislike or something
like that. Unfortunately I do not think I …(intervenes).
A D V S U S A N W E N T Z E L : C h a i r, i s i t i s a l s o a n i s s u e t h a t I c a n v a s s e d
10

with the General this morning.
C H A I R P E R S O N : Yo u k n o w t h e p a r a g r a p h I a m t a l k i n g a b o u t .
ADV SUSAN WENTZEL: I believe it is paragraph 187 on page 72.
CHAIRPERSON: 187?
A D V S U S A N W E N T Z E L : Ye s . O n p a g e 7 2 … ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
ADV SUSAN WENTZEL: And he there says …(intervenes).
C H A I R P E R S O N : O h . Ye s . J a .
ADV SUSAN WENTZEL:

And

it

was

when

reading

this

at

…(intervenes).
20

C H A I R P E R S O N : J a . I t i s t h e p a r a g r a p h I w a s l o o k i n g f o r.
ADV SUSAN WENTZEL:

That is what struck me.

I was – I read that

carefully and then I went back to the first paragraph I quoted.
CHAIRPERSON: Ja. Let me just say before you proceed. It says:
“I am of a considered view that my dismissal was
influenced by a developed personal prejudice of Phiyega

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16 JANUARY 2020 – DAY 200
which is demonstrated by among others blah, blah,
blah.”
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:

I accept that one must not read that in isolation

…(intervenes).
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: But it is something that concerned me as well.
ADV SUSAN WENTZEL:

Ye s a n d t h a t t o b e h o n e s t w i t h y o u C h a i r i t

w a s i n p r e p a r i n g l a s t n i g h t a n d t h e n I g o t t o t h e e n d o f t h e a ff i d a v i t a n d
10

I read that and I thought no. Where is the link then if this is what it is?
It did concern me. That is why without even receiving your message I
did canvas this very issue, but I must say that speaking to the General
a n d – t h i s m o r n i n g a n d a g a i n n o w.
I believe that the – my submission is that the probabilities are
as a result of the President – the former President was because of the
treatment of Mdluli and his belief and we understand his belief that
there was a conspiracy against him and that General Lalla was involved
i n t h a t c o n s p i r a c y.
T h a t e n d e d h i s c a r e e r, b u t I c a n n o t a n d I d o n o t t h i n k i t i s

20

going to be – I think that you are correct that a consultation should now
take place with General Phiyega, but I do not believe and I cannot see
if it is necessary that it is possible without her admitting it which is
u n l i k e l y. T h a t y o u w i l l b e a b l e t o m a k e a d i r e c t l i n k . S h e w a s t o l d b y
the former President you must get rid General Lebeya. I do not know
how …(intervenes).

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16 JANUARY 2020 – DAY 200
CHAIRPERSON:

Well I think what should happen is – which should

h a v e h a p p e n e d a l r e a d y.
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: Not just Ms Phiyega …(intervenes).
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: But there may be other people …(intervenes).
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:

Who should be interviewed who may well be able to

throw more light …(intervenes).
10

A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:

Bring out more facts, because Ms Phiyega will tell

you whatever she will tell you.

That is fine.

She will – may admit

h a v i n g d o n e s o m e o f t h e t h i n g s a l l e g e d a g a i n s t h e r.
others.

She might deny

She might give her own explanation and justification for why

she did those that she will admit, but you need to go to other people as
well.
Yo u m a y n e e d t o g o i n t o r e c o r d s .

Check certain records.

What is it that could throw light to explain why – what was done to
Dr Lebeya was done?
20

It may be that what she will tell you will seem

very plausible. So plausible that does not look like it would be justified
to go further …(intervenes).
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: But it may be that what she will tell you will still leave
question marks and therefore you need – you may need to talk to other
people. Get some documentation. Maybe some files need to be looked

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16 JANUARY 2020 – DAY 200
at, because on this statement some of the things that were done to
D r L e b e y a a r e d i ff i c u l t t o u n d e r s t a n d .
Yo u s a y w h y w a s t h i s d o n e , b u t i t m a y b e t h a t i f f u r t h e r
investigation is done that which seems lacking will come out and can
then – one can then see the picture in a way that allows one to say no.
Now I can see how it fits into the terms of reference. For me in terms
of what I have seen here to say it might be the former President who
might have done whatever who might have said to somebody do not
promote so and so.
10

Side-line him.

At that stage from what I see here is just a

suspicion. Nothing more than that.
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON:

Obviously we cannot decide and make findings on

suspicions.
ADV SUSAN WENTZEL: On a …(intervenes).
CHAIRPERSON: So – but I know you said Dr Lebeya said he does not
think that further investigation will change the picture.

Maybe he is

right, but I would rather have a situation where we have satisfied
ourselves that there has been a proper investigation.
20

ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: Particularly to try and establish why – what was done
to him was done. There may well be other people. I mean we have had
situations where some witnesses might not have been prepared to say
c e r t a i n t h i n g s i n t h e p a s t b u t a r e p r e p a r e d t o s a y t h e m n o w.

It may

well be that if a proper investigation to try and establish …(intervenes).

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16 JANUARY 2020 – DAY 200
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON: Why all of this was done.
ADV SUSAN WENTZEL: H’mm.
CHAIRPERSON:

Maybe that something could come out.

So I do not

want to say at this stage this does not fall within the terms of
reference. I do not want to say that, but I am saying that it falls within
does not come out as clearly as I would like it to come out.
Certain portions might – certain portions, but a large portion
might not and further investigation might well assist us. That is what I
10

t h i n k a n d I d o g e t t h e i m p r e s s i o n t h a t t h e L e g a l Te a m h a d a l s o n o t
applied its mind fully to that issue in time.
A D V S U S A N W E N T Z E L : Ye s . T h a t i s c o r r e c t . I t … ( i n t e r v e n e s ) .
CHAIRPERSON: Ja.
ADV SUSAN WENTZEL: It …(intervenes).
CHAIRPERSON:

Ja and I think maybe it is best that we adjourn the

h e a r i n g o f D r L e b e y a ’s e v i d e n c e f o r t h a t f u r t h e r i n v e s t i g a t i o n t o b e
done and …(intervenes).
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON:
20

F o r t h e L e g a l Te a m t o a p p l y i t s m i n d t o t h i s i s s u e

…(intervenes).
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: And for further investigation to be done and if – and it
may well be that as a result of the further investigation.

Further

a ff i d a v i t s m i g h t b e o b t a i n e d f r o m o t h e r w i t n e s s e s w h o m i g h t b e i n a
position to talk about this issue and maybe throw more light on this. If

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16 JANUARY 2020 – DAY 200
after all has been done the position remains the same.

Then I can

make a decision at that stage.
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: So that is what I am inclined to.
A D V S U S A N W E N T Z E L : Ye s .
CHAIRPERSON: Ja.
ADV SUSAN WENTZEL: I – no objection …(intervenes).
CHAIRPERSON: Ja.
A D V S U S A N W E N T Z E L : To t h a t h a p p e n i n g .
10

CHAIRPERSON: Ja. Ja.
ADV SUSAN WENTZEL:

C h a i r, I h a v e b e e n t o l d t h a t t h e P r o v i n c i a l

Commissioner Ngobeni received a Rule 3.3 Notice in respect of
Va n L o g g e r e n b e r g ’s e v i d e n c e o n t h e 2 0 t h o f D e c e m b e r 2 0 1 9 .
CHAIRPERSON: Was it sent to her on the 20th or did she receive it on
that day?
ADV SUSAN WENTZEL: It is marked received …(intervenes).
CHAIRPERSON: Ja.
ADV SUSAN WENTZL: But I will speak to my …(intervenes).
C H A I R P E R S O N : Yo u w i l l … ( i n t e r v e n e s ) .
20

ADV SUSAN WENTZEL: Speak to my colleague …(intervenes).
CHAIRPERSON: Ja and …(intervenes).
ADV SUSAN WENTZEL: And see why it is …(intervenes).
C H A I R P E R S O N : Ye s .
ADV SUSAN WENTZEL: She believes it was not sent.
C H A I R P E R S O N : O k a y. N o .

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16 JANUARY 2020 – DAY 200
ADV SUSAN WENTZEL: We can make those investigations.
CHAIRPERSON:

O k a y n o w t h a t ’s f i n e . D o c t o r L e b e y a I t h i n k t h a t i t i s

best that we adjourn the hearing of your evidence to allow the Legal
Te a m t o a p p l y i t s m i n d t o t h e i s s u e s t h a t a r e t r o u b l i n g m e , b u t a l s o f o r
further investigation to see whether the investigators can get evidence
t h a t t h r o w s l i g h t o n e w a y o r a n o t h e r.

We are not necessarily looking

for evidence that supports you, even if its evidence that shows that
there was what you say is not true or what you believe is not true but
we must just get all the evidence that we can get and after all that has
10

b e e n d o n e a n d t h e L e g a l Te a m h a s a p p l i e d i t s m i n d t o t h e i s s u e s t h e n
the – another date may then be arranged and then we try and make a
decision.
D O C T O R L E B E YA : I a g r e e J u d g e .
CHAIRPERSON:

Do you understand?

D O C T O R L E B E YA :
CHAIRPERSON:

Thanks Chairperson.
Okay thank you.

If you don’t have any further issue

to deal with I would be ready to adjourn.
ADV SUSAN WENTZEL:
CHAIRPERSON:
20

Ye s C h a i r.

Yo u d o n ’ t .

T h e w i t n e s s f o r t o m o r r o w, w h o i s c o m i n g

t o m o r r o w, i s i t M r W h i t e ?
ADV SUSAN WENTZEL: The witness scheduled to come tomorrow is
Advocate Manyati, but he will be a short witness, I obviously was
intending to spend part of tomorrow also leading General Lebeya and
Tr e v o r W h i t e i s d u e t o s t a r t o n M o n d a y.

I’ve planned to consult with

him again during the course of this weekend.

Page 38 of 42

I would ask your

16 JANUARY 2020 – DAY 200
indulgence that I have that opportunity before I put him in the witness
b o x t o m o r r o w, I m e a n s o t h a t I d o n ’ t – I m e a n I c o u l d s t a r t l e a d i n g h i m
and consult over the weekend and continue but I would prefer he is in a
hotel, he is coming up this weekend specially to consult.
CHAIRPERSON:

W e l l I h a v e r e a d t h e a ff i d a v i t o f A d v o c a t e M a n y a t i ,

yesterday I was talking about Advocate Nzinyati, I don’t know if I am
c o n f u s i n g t w o p e o p l e o r – b u t I h a v e r e a d h i s s t a t e m e n t – h i s a ff i d a v i t
it is short.
ADV SUSAN WENTZEL:
10

CHAIRPERSON:

It is short yes.

I t h i n k i t ’s a n – I t h i n k h e i s n o t a w i t n e s s t h a t s h o u l d

come and give evidence in circumstances where there would be no
o t h e r w i t n e s s t h a t d a y, b e c a u s e w e p r o b a b l y w o u l d n ’ t t a k e m o r e t h a n
a n h o u r.
ADV SUSAN WENTZEL:

No I don’t believe it will be more than an

h o u r.
CHAIRPERSON:

So he should be brought in when there is another

witness, or other witnesses that will be called so that we don’t convene
the Commission just for one hour and then we go.
ADV SUSAN WENTZEL:
20

CHAIRPERSON:

Ye s I a g r e e .

But then I am more concerned now because it means

we are losing two days.
ADV SUSAN WENTZEL:
CHAIRPERSON:

Ye s w e a r e , a n d t h a t i s u n f o r t u n a t e .

I was hoping that Mr White is the one coming

tomorrow and that we could sit, hear his evidence tomorrow at least,
b u t y o u s a y i t i s t o o d i ff i c u l t b e c a u s e y o u h a v e n o t – y o u s t i l l n e e d

Page 39 of 42

16 JANUARY 2020 – DAY 200
sessions with him?
ADV SUSAN WENTZEL:

I would prefer Chair to have the scheduled

sessions with him.
CHAIRPERSON:

Ja.

ADV SUSAN WENTZEL:

But I do – I appreciate that it does lose two

days and Chair if you wanted me to I can try and approach him and see
how far I could get but ...(intervenes)
CHAIRPERSON:

But you say he comes from KZN?

ADV SUSAN WENTZEL:
10

He is coming from, yes, he is only due to

come over the weekend to consult.
CHAIRPERSON:

So I think with regard to the witness that was going

to come tomorrow you need to rearrange so that we – he can come one
day when there are other witnesses, otherwise just coming for a
witness that will be one hour is not the best thing, it is something one
should do only if really there are exceptional circumstances.
ADV SUSAN WENTZEL:
CHAIRPERSON:

Ye s .

So next week it means you have Mr White, and who

else?
ADV SUSAN WENTZEL:
20

CHAIRPERSON:

The two of them?

ADV SUSAN WENTZEL:
CHAIRPERSON:

A n d C o l o n e l d u P l o o y.

Ye s .

W h e r e i s G e n e r a l J o h n M a a r t ’s s t a t e m e n t , I h a v e

been saying for some time have we got it already? Not yet?
ADV SUSAN WENTZEL:

It hasn’t been obtained yet, there is some

reluctance on his part I believe to provide a statement but we will

Page 40 of 42

16 JANUARY 2020 – DAY 200
follow up on that and try and get a statement and get his cooperation to
get a statement.
CHAIRPERSON:

O k a y, a l r i g h t .

Somebody must talk to me about

obtaining certain statements from certain witnesses who fall under law
enforcement agencies because it has been quite some time that I have
been expecting statements to have been taken from them.

O k a y,

a l r i g h t , w e a r e g o i n g t o a d j o u r n t h e p r o c e e d i n g s f o r t o d a y, I a m s o r r y t o
everybody that we are not able to continue for the whole day and we
won’t sit tomorrow as well.
10

I am hoping that steps will be taken to

make sure that we don’t situations which result in this so we apologise
to everybody and the public about that.
S o w e w o n ’ t s i t t o m o r r o w a n d t h e n w e w i l l c o n t i n u e o n M o n d a y.
Please apply your minds in regard to witnesses who are still coming,
apply your mind with regard to similar issues as the ones that have
a r i s e n t o d a y.
ADV SUSAN WENTZEL:
CHAIRPERSON:
REGISTRAR:

Ye s I w i l l .

Ja. We adjourn

All rise.

I N Q U I RY A D J O U R N S T O 2 0 J A N U A RY 2 0 2 0
20

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16 JANUARY 2020 – DAY 200
TRANSCRIBER’S CERTIFICATE FOR COMMISSION OF INQUIRY INTO STATE
CAPTURE
HELD AT
PARKTOWN, JOHANNESBURG

DATE HELD

: 2020-01-16

DAY:

: 200

TRANSCRIBERS

: B KLINE; M NETTA; D STANIFORTH

Audio’s are typed verbatim, as far as audible/possible

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