1 COMMISSION OF INQUIRY INTO ALLEGATIONS OF POLICE INEFFICIENCY IN KHAYELITSHA AND A BREAKDOW N IN RELATIONS BETW EEN THE COMMUNITY AND POLICE IN KHAY

1 COMMISSION OF INQUIRY INTO ALLEGATIONS OF POLICE INEFFICIENCY IN KHAYELITSHA AND A BREAKDOW N IN RELATIONS BETW EEN THE COMMUNITY AND POLICE IN KHAYELITSHA PHASE ONE Bhekithemba Simelane Date: 23 January 2014 Source: Pages 75-101 of Commission transcript CHAIRPERSON: Thank you very much, Ms de la Hunt. At this stage we re going to move to our first witness, Mr Bhekithemba Simelane. W elcome, Mr Simelane, welcome to be the first witness here at the Khayelitsha Commission. We are very grateful that you are here. I am going to commence by putting the oath but before I do that I want to confirm that we have received your witness statement which does disclose your name and your task and you have no difficulty with those being disclosed in the public environment. MR SIMELANE: Thank you. COMMISSIONER: Good, thank you. I would like now to put the oath to you. BHEKITHEMBA SIMELANE : (Sworn states) COMMISSIONER: Thank you very much indeed. Ms Bawa? EXAMINATION BY MS BAW A: Good morning, Mr Simelane. MR SIMELANE: Good morning, Adv Bawa. MS BAWA: Well, it s actually good afternoon. If we have a bit of an interruption in the middle because they seem to be having a di fficultly with the machine. If we could just give them a minute before we start? MR SIMELANE: I think we might get a better view if we just switched off these lights. MS BAWA: Mr Simelane, you are the Deputy Director Policy and Research in the department of Community and Safety in the Western Cape Province and you ve been employed by that department since 2002, is that correct? MS BAWA: And you furnished the Commission with an affidavit, do you confirm the contents thereof as being true and correct? MS BAWA: Now your current employment is in the research unit at the department. What do your duties primarily entail? MR SIMELANE: My duties entail doing research within the ambit of safety and security in support of the mandate of the Department of Community Safety with civilian oversight covered in the whole of the Western Cape. MS BAWA: And in the course of that you ve done extensive reports pertaining to Khayelitsha as well as other areas in the Weste rn Cape. MS BAWA: Now you have a master s degree in social science from the University of the Western Cape that you obtained in 2005, is that correct? MS BAWA: And what are your other academic qualifications? /

2 MR SIMELANE: I ve got a general degree from UW C, I ve got an honours degree in higher diploma in Education, post -grade diploma in Monitoring and Evaluation. MS BAWA: And your honours, is there any particular subject that you ve dealt with? MR SIMELANE: Among others it was geography at a junior level as well as an honours level. MS BAWA: Okay, thank you. So you re giving evidence today giving us a broad overview of the geographic layout of Khayelitsha with reference to a number of maps. These maps have been provided to the respective parties before the Commission. So if you could possibly run us from the start as to what are the outer boundaries of Khayelitsha. MR SIMELANE: Thank you. Ladies and gentlemen, displayed on the screen defines Khayelitsha. I will be zooming in and out when we describe certain areas in Khayelitsha. On the northern side Khayelitsha is bordered by the N2 freeway and on the eastern side it is bounded by Baden Powell Drive and Baden Powell drive extend to the south where it joins Swartklip Road and the very same Swartklip which is joining Khayelitsha from the west. So those are the main boundaries that define Khayelitsha as an area. MS BAWA: So if you could give us an indication on the map as to where s Swartklip Road? MR SIMELANE: On the map from this part, this is the Swartklip Road going south and on this side this is the part that defines Baden Powell Drive. MS BAWA: And that would effectively be the outer boundaries that we could say on the lower side of the map? MR SIMELANE: Swartklip will be the outer boundaries on the southern part of Khayelitsha. MS BAWA: Now Khayelitsha consists of a number of areas, right? Tell us, in the map we ve marked up certain areas in yellow. W hat does that signif y? MR SIMELANE: The bright colours which are written mostly in yellow on this map as well as on that map which is the hard copy of the map that is presented on the scale indicate the informal settlement that are present in Khayelitsha. MS BAWA: Right, now Khayelitsha is divided into three policing precinct areas you have another map which you might want to pull up just quickly which is also the map on the wall right and we see a yellow area, an orange area and a blue area. Perhaps talk us through what tho se areas are. If we could start maybe with the yellow area as I understand it to be the area of jurisdiction of the Khayelitsha site B police station. W hat does that area encompass? MR SIMELANE: Indeed this area and it s also reflected in this map so I will be pointing to both maps for the purpose of giving an orientation. So if you look at the hard copy map that is reflected here, the yellowish area here that cover the police service boundary for Khayelitsha site B police station, this is the very same area covering site C in the main, site B and all this informal settlement which includes BM section, France, Taiwan, BT section as well as the TR section and part of site B where you can see some of the informal settlement are reflected. MS BAWA: The taxi rank is also located in that area, perhaps whilst we re there, you might want to show us where the taxi rank is located. MR SIMELANE: The taxi rank is located in site C which is the part that is displayed now on the map and this is the taxi rank close to site C plaza.

3 MS BAWA: Okay you referred to TR section, maybe on the bigger map. TR section is the if we can refer to that again, that is the sorry Mr Simelane go back to the map we were on. That one, TR section that is the narrow area at the bottom that becomes wider is that correct? MR SIMELANE: TR section is this section here which goes down parallel to the New W ay road. MS BAWA: Right, so that crosses over into the next area, if we go back to so you ve described the BM section, the France section and the Taiwan area and that all falls under the area which forms part of the Khayelitsha police station. MS BAWA: If we come to the Harare police station area which is the area covered in the blue portion of the map, you wi ll see that there is two big portions of informal settlement within the Harare section, is that correct what are those? MR SIMELANE: Correct, this is the Harare police station with the police station located at this particular point and on the Southern part of the area is Endlovini informal settlement which is spilling over from Mew W ay and on the East North East part of the Macassar area is the Enkanini informal settlement. So these, as you can see, appear to be the two biggest informal settlements i n this police precinct and probably in Khayelitsha as a whole. MS BAWA: W hat are the formal areas in the Harare section? MR SIMELANE: I wanted to point out to this area over here which is including Kuyasa, Mandela Park and part of Harare, those are areas that fall within this police precinct. MS BAWA: The Macassar area is also in this district is that correct? MS BAWA: And perhaps with reference and that is further up to the Northern part of the map. MR SIMELANE: The part that is now displayed, it s part of the Macassar area this is the Baden Powell that I made reference to, this is the entrance road, it s Lansdowne and all of this area covered in here is part of Macassar area. MS BAWA: So if we turn to the third police precin ct in Khayelitsha that is Lingulethu West police precinct, can you show us where the police station is located? Perhaps while we ve described the Lingulethu W est area as the smallest area, on the map it looks a bit misrepresentative is that because the Swartvlei Nature Reserve is included in the Lingulethu West area? MS BAWA: Could you maybe show us which are the boundaries of the Swartvlei Nature Reserve? MR SIMELANE: Perhaps to start with this is the location of the police statio n Lingulethu West and the area in here, this is where the Commission is sitting, the lookout hill going down going up here North towards the N2 this part is part of the Swartvlei Nature Reserve. MS BAWA: So the formal area which forms part of the Lingul ethu West jurisdiction is Elitha Park? MR SIMELANE: Elitha Park will be one of those areas as you can see. MS BAWA: Okay. And what are the other areas? MR SIMELANE: There is also Graceland, Mandela Park, Elitha Park and part of Khayelitsha. MS BAWA: Now we ve in recent years seen the construction of a state -of-art

4 hospital being built in Khayelitsha. Where is that located? MR SIMELANE: The hospital is located close to the Steve Biko Road, this is the Steve Biko Road and here is the location of the h ospital. MS BAWA: There are five train stations located in Khayelitsha, perhaps you could just point out where each of those stations are on the map? MR SIMELANE: I must indicate that two of the stations are located within the Khayelitsha site B police station, the first one being Nlongolile(?) noting that I ve mentioned that the taxi rank is here so this is the first station within Khayelitsha that is there. The second train station is Nonkqubela which is close to the Site B shopping mall and it is sti ll within the police precinct of Khayelitsha, Site B. The third train station is Khayelitsha and Khayelitsha is also close to the Khayelitsha Shopping Centre and this train station is in Lingulethu West. The other two train stations, which are the last one, are located in Harare police precinct and the first one is Vuyasa(?) and further east is Chris Hani. That marks the five train stations that are operational in Khayelitsha. MS BAWA: Now, Mr Simelane, there are three sub -councils in Khayelitsha, is that correct? Sub-council 9, 10 and 24. MS BAWA: And Harare is one of the 12 wards in Khayelitsha. MS BAWA: You have the respective maps reflecting the three sub -councils, could you give us indication of what is located in each of those sub -councils? MR SIMELANE: What is displayed is sub -council 9 which covers the area Site B or Site C and Site B as you go further down where the police station is, where the BM section is, France. The TR section, that s m ainly part of sub-council 9 and then sub-council 10, it is where the Lingulethu police station is located and it covers areas like where the hospital is also located, the court, the Metro department that covers the area of sub -council 10. As you can see the boundaries going down here. Sub -council 24 is the sub -council that covers the greater part of Enkanini and Endlovini. The southern part of the map shows Enkanini area. Going down in here, it will be leading to Endlovini but this council also goes up to Macassar area to the north. MS BAWA: Now if we look at Khayelitsha then to the north we see it is bounded by wetlands, is that correct? MS BAWA: And to the south of Endlovini there are dunes? MS BAWA: So neither to the north nor to the south is suitable for any kind of development. MS BAWA: Okay. I have no further questions for this witness. COMMISSIONER: Thanks. Mr Arendse you indicated that you wanted to cross - examine (inaudible microphone not on) Oh sorry, I beg pardon. Mr Arendse, did you hear that? Just saying that we ve granted your request to cross - examine in relation to some of the questions that you have asked. It s now quarter to one, would it be feasible for you to when you finish your cross - examination subject to any requests from Ms Bawa for re -examination we will take lunch which at the very latest will be quarter past one but hopefully it might be a little before that. Thank you.

5 CROSS-EXAMINATION BY MR ARENDSE: Thank you, Madame Commissioner. Mr Simelane, did you volunteer this information to the Commission or were you or was it procured by DOCS, the Department of Community Safety? MR SIMELANE: I did not volunteer this information. Nor was the information provided by DOCS. The Commission requested a map showing geographical layout of Khayelitsha as an area and I ve facilitated the process to acquire that map from Department of Environmental Affairs and Development Planning and upon giving the orientation to the evidence leader, Adv Bawa, she requested that I come and present the map of Khayelitsha to the Commission, hence I am here. MR ARENDSE: Okay. Now you mentioned in your oral evidence which I stand corrected doesn t appear from your writ ten statement that you also have some degrees in geography, is that correct? MR ARENDSE: Because the next question was that you indicate in your written statement that your duties entail primarily doing research work and writing reports so the question that we had posed is what qualifies you to give evidence on the geographic layout of Khayelitsha and this reference to maps? MR SIMELANE: As I indicated before that I have done geography at a tertiary level up until honours level and secondly I have been with the Department of Community Safety for more than a decade and in the process I have been involved in work that relates to Khayelitsha which among others relates to the generation of maps and I m familiar with the software that is used to generate the maps hence I can read, I can interpret, I can understand the map. MR ARENDSE: Okay. W hat is the purpose or primary purpose of your research and writing reports as part of the DOCS research unit? MR SIMELANE: Policy in research, co nduct a research, write reports with the purpose of advancing the mandate of the department which is civilian oversight. So we write those reports and advise management on trends and what communities out there are saying in relation to safety and security. MR ARENDSE: Chair, may I just ask, we are required to indicate in writing the questions we intend to ask. If there is a question that perhaps arises from an answer that s given by a witness are we permitted to make a follow up question? COMMISSIONER: No, we don t want to make your life unduly difficult but perhaps you could indicate what the question is? MR ARENDSE: Well, the question was this, the reports seem to relate to what we always understood was the sort of core function of the DOCS resea rch unit which is not related to map work but doing research on trends and oversight and monitoring work which is what the witness has indicated. COMMISSIONER: But I mean if I could just understand the purpose, Mr Arendse, are you suggesting that a perso n who has an honours degree in geography is not an expert witness on the subject of maps? MR ARENDSE: I m not suggesting that at all, Madame Commissioner. COMMISSIONER: W ell, then perhaps (intervention) MR ARENDSE: I m just asking about what his c ore function is, his core function doesn t relate to doing map work. COMMISSIONER: I think he has answered both what his core function is and he has indicated that he has a degree in geography. I m not sure where your questioning is going and perhaps if you could indicate that to me it would be helpful.

6 MR ARENDSE: Well, firstly I think we may have raised it and it may be recorded in the pre-hearing minutes that we indicated with some surprise that so-called expert evidence was going to be led upfront like today. W e expected this but then but we re not taking issue. COMMISSIONER: I understand, Mr Arendse, I m perfectly happy to answer that query. W hat the Commission feels, as people who do not actually live in Khayelitsha, it would be very helpfu l for us before we hear a lot of evidence about events that take place in Khayelitsha to be guided on an overall understanding of how the map works. So that was really the purpose of the evidence today and as you know, this is not an adversarial process, this is to some extent or perhaps directly by the Commissioners. We wanted to have before the Commission a set of maps, reliable maps, where we could ask other witnesses to indicate on those maps where events happened, etcetera, so that we are deeply contextualising ourselves in relation to that and that is why we asked Mr Simelane to give evidence. MR ARENDSE: No, we are entirely agreeable with that approach and it makes perfect sense that we have this kind of indication upfront. The issue is just th at we are not at this stage able to contest on the reliability of the maps because we were only expecting to engage experts, if any, at a later stage in the inquiry, but I m not I don t want to take issue with that. COMMISSIONER: Okay. MR ARENDSE: Mr Simelane, there s a reference in your written statement to a list of extensive reports relating to Khayelitsha. To what extent do any of these extensive reports relate to policing or the impact on policing in Khayelitsha and are you the author of these r eports or are they authored by some other person or persons? MR SIMELANE: Firstly I must indicate that the reports are compiled by different units within Department of Community Safety. Some of them are compiled by our unit, policy and research of which I m author but some of them are compiled by my colleagues. So I am not the author of all of those report and indeed those report has been submitted to the Commission as a record. MR ARENDSE: So they are available to us? MR SIMELANE: Indeed. MR ARENDSE: Do any of these reports relate to the subject you re testifying to today, the geographic layout of Khayelitsha? MR SIMELANE: Correct, the map the report relates to the geographic layout of Khayelitsha but that is not in detail because the focus of th e report was not only the layout of the area but it was on the issues that are affecting Khayelitsha people in terms of safety and security, so the maps that are displayed on the report will be maps that are showing just an orientation not in detail. MR ARENDSE: Now you I think fairly indicate upfront in your written report that you don t want to be held responsible for indicating some areas by a certain name because it is the case in Khayelitsha that some areas are known by certain names or names but the n when the residents of Khayelitsha referred to them, they referred to them by other names. Do you recall that that s in your written statement? MR ARENDSE: Now the follow up question relating to that or arising from that is that do you accept that the police would also from time to time have some

7 difficulty in identifying areas or going immediately to areas when they are called upon to do so by the residents if the police know some areas by one name and the resident is referring t o it by another name? MR SIMELANE: I must state that I am of the opinion that the police in Khayelitsha will be aware of most of those areas. The reason for me pointing out those areas was to indicate that there could be areas or sub -areas within the bigger areas which I am not familiar with, which I m not aware of and I would like to draw your attention to (intervention) COMMISSIONER: Mr Simelane, could I just interrupt you for one minute, I just wanted to say that that particular question was disallo wed be it s speculative but you re certainly permitted to ask the question of examples of names. I mean, I think it would be unfair to ask Mr Simelane to say how the police would respond but you would be permitted to ask Mr Simelane what are the you know, the areas where there s more than one name which can give rise to confusion. MR ARENDSE: Sorry, Madame Commissioner, if I m wrong then I withdraw the question but I marked it off as one of the questions that was allowed. COMMISSIONER: That may be so, so which is why I didn t stop it. My evidence leader suggested to me that we had I m worried about the speculative nature of the answer but I think it would be helpful to follow up on the purpose of your question to look at this issue of how many doub le names there are and where they are which I think was the question prior to that which you were going to ask. MR ARENDSE: Yes. Madame Commissioner, are you asking me to give specific examples? COMMISSIONER: Yes, which I thought was your (inaudible microphone not on) MR ARENDSE: Ja, I think this also arises or was indicated to us during the inspection in loco that and perhaps it s not fair to ask you this question of put it to you because during the inspection in loco the station commander would have indicated that they get a call and a letter with a shack number is given and then the police go to a particular part of Khayelitsha and they are now told, no it s here, it s in another part of Khayelitsha and this affects the response time of the police. Are you aware or have you got a personal experience of that? MR SIMELANE: I don t have a personal experience of that given the fact that the day-to-day operation of lodging complaints is done to SAPS, so I wouldn t know as to whether SAPS have recei ved any complaint and they have misdirected their resources owing to their lack of knowledge of that particular area. MR ARENDSE: You say in your statement that the main business up in Khayelitsha is in Site B opposite the or rather, you were asked to comment on what I m putting to you that the main business up in Khayelitsha is in Site B opposite the Khayelitsha police station and that has been the case for the past three to four years. My question to you is, what is the nature of the business located in Site C as compared to that located in Site B? MR SIMELANE: My response will be in my opinion I think that the opposite will be true. Site C will be the area which is most busiest area as compared to Site B given the fact that in Site C you ve got a train station, you ve got a shopping mall but most importantly, you have the long distance taxi rank which is not available in Site C so hence the level of activity in Site C in my opinion is likely to be very high.

8 MR ARENDSE: So you just defined the ma in business area with reference to the transport hub being the railways and the taxi rank. Is that the reason why you say that the main site business location is in Site C? MR SIMELANE: That s my comment that I can advance. MR ARENDSE: Before the comin g into operation of the Khayelitsha Hospital are you aware that the closest hospital servicing the Khayelitsha residents was the G F Jooste Hospital in Mitchells Plain? MR SIMELANE: Yes, but there was also the Khayelitsha Day Hospital which is located in Site B and other clinics that were serving the area. MR ARENDSE: Those were the questions were allowed, Madame Commissioner. COMMISSIONER: Thank you, Mr Arendse. The Commission would like to put a few questions to you, Mr Simelane. One is that in the areas which are informal settlements, it doesn t appear as if there are any named roads, is that correct? MR SIMELANE: May you repeat your question, Commissioner? COMMISSIONER: Are there named roads or routes or pathways in areas that are named that are informal settlements, are there ways that they ve got identified names or are there no identified names on roads and pathways in informal settlements? MR ARENDSE: There is a difficulty in the informal settlement in terms of identifying the street nam es as well as the informal settlement themselves so as it has been pointed that there are names that are used just to demarcate a particular geographical area by the locals, so street names are not always clearly marked. COMMISSIONER: So if you had to go somewhere in an informal area how do you find your way around? MR SIMELANE: Mainly I think the best will be to liaise with locals who will be able to orientate you thoroughly to get hold of the particular place because the address will not be helping you because there are no address in some of this informal settlement. COMMISSIONER: Secondly, in relation to the streets in the formal areas is there a reliable numbering system in operation as to houses? So do the houses run 2, 4, 6, 8 on one side of the street and 1, 3, 5, 7 on the other side or is the system of numbering not reliable or can you not answer the question? MR SIMELANE: To a large extent in the formal settlement the numbering will be could be used but in the informal settlement and those areas that the numbering will be very confusing given the fact that development has just sprawled out of control in a way. COMMISSIONER: Thank you very much. MR BAW A: I need to clarify one aspect of what you were asked in paragraph 6 of your statement where you dealt with the different names of the area which Adv Arendse asked you, you indicated that whilst you were knowledgeable of Khayelitsha you were aware that in a number of these areas the residents may refer to the areas using different names to t hat which you used. I think Adv Arendse couched it as if you were not going to take responsibility for the names you were using but I want - you have prepared a table in anticipation of that question which could you maybe elaborate on exactly what you h ad referred to in your affidavit with reference to the table? MR SIMELANE: What I wanted to point out is that within Khayelitsha there will be areas that could be defined as the official name of a given area, for example

9 there is an area called Thembani S quare which is in site C, it is somewhere in here in site C. Officially the area is Thembani Square but locals use the name Voortrekker so if you were a person who s coming outside of Khayelitsha, you re not familiar with Khayelitsha, you are asked about Voortrekker you will not be able to know it, unless you are being orientated by the locals. And in addition, in the area of Enkanini, the informal settlement, the whole area is defined as Enkanini but the Southern part of Enkanini, this part, is known as Zwelitsha or Zwezwe. And if you go to the corner, North East of Enkanini this part, there will be an area called Ezinfeneni which is close to Enkanini. Those areas you will not know them because they are not official names, only locals will know and I must indicate that these are the ones that I am aware of. I m tempted to say that local people can identify more of these areas. In Macassar at the corner of Lansdowne Road and Fuguta Road on the Northern part there is an informal settlement in here which is defined as Msendweni but that is part of Macassar Mofuti, thank you. MS BAWA: Thank you Mr Simelane. MR ARENDSE: Madam Commissioner can we just get a copy of that table and then...(intervention). MS BAWA: Maybe from form sake there may be other doc uments that come in maybe we should just name that and do that. COMMISSIONER: I think that will be a good idea, we ll name it shall we name it BS1, thank you. UNIDENTIFIED MALE: Mr Simelane I find the names very interesting, is there any special significance behind the names or connected to any event? MR SIMELANE: I wouldn t be so sure about the meaning behind the names, my reasoning would be that maybe we need to do a bit of research to find out what is behind the name of this area, I m tempted to say that perhaps people in Khayelitsha particularly who are coming from these areas, they could also provide more insight. MR HATHORN: Commissioner I ve got a general procedural question it s not directed to Mr Simelane specifically but it relates to the proce ss of crossexamination, that there have been a whole chain of enquiry relating to the SAPS questions which we haven t been aware of and it hasn t arisen in this particular situation but there might well be situation where that chain of inquiry requires us to take instructions and if we needed to ask questions arising out of it we would be in a position now where we would have to ask for an opportunity to for the Commission to stand down for us to take instructions and we would submit that it would be advantageous for all the parties concerned for at least the questions which have been allowed for purposes of cross -examination to be made available to all the parties beforehand so that they re able to follow the chain and prepare beforehand in order to faci litate the smooth running of the Commission. A second related question is that we understand from the inspection in loco that some of our witnesses have asked to cross -examine but we haven t been given notice of that so it s a distinct issue but the notic e clearly requires that we be given those questions at the same time that they be submitted to the Commission. COMMISSIONER: Yes I think it is an interesting proposal I d like to hear the views of other counsel before us at the moment the proceeding has been that, where the where a party wants to cross -examine a witness that is being led by the evidence leaders the Commission is served with a notice, if it is a witness

10 that s been led by somebody else for example a SAPS witness the notice should go to the Commission and to SAPS but it may be we weren t sure whether notices were originally drawn up how many parties we were going to have before the Commission, it may be useful for applications to cross -examine and for the Commission s rulings on those to be circulated to all the parties, I d like to hear your views on that Mr Arendse. MR ARENDSE: Madam Commissioner, we understood that and this was also raised and discussed and agreed at the pre -hearing that all of us would be required to indicate any questions from cross-examination and what we understood was the list of witnesses appearing this week and next week would be witnesses called or led by the evidence leaders so we have lodged our application to lead and we are trying to, as far as possible g et our list of questions in three days before the witness gives evidence. So we have made the applications to the secretary and the evidence leaders and we have received directions from yourselves, honourable Commissioner as to which questions were permitted or not. We the only other party that we received questions from was from Mr Osborne and on behalf of DOCS. We thought there would be this kind of exchange, of questions that are allowed so that we could then be prepared. So I m a bit surprised b y this request now if as would appear to be the case if there s no questions that Mr Hathorn had submitted on behalf of his client then he must do so and if he s late then he must ask for condonation. COMMISSIONER: I don t think he was asking he was jus t suggesting that there would be circulation amongst all the parties of applications to cross -examine with a list of questions and circulation amongst all the parties of the Commissions rulings on that. My understanding from what you re saying is that you would support both those processes, thank you...(intervention). MR ARENDSE: The only thing is Madame Commissioner, excuse me, is I don t think we should permit for any party where they have not posed any questions, where they clearly have had the opportu nity to establish or determine whether they re going to ask questions or not when another party has done so and questions are posed and answers come out which they don t like or which don t suit their position taken in the opening statement that they now w ant to get the opportunity to ask for the Commission to direct that they may ask such questions. COMMISSIONER: My general approach is cross bridges when they present themselves so shall we leave that for the minute but I think the idea would be that we will circulate all documents, Mr Osborne you d be happy with that proposal? MR OSBORNE: Yes madam Chair, thank you very much we associate ourselves with what was sought by our colleague. W e do appreciate that there may have been a charitable intent to save all of us from a blizzard of emails containing communications not of direct relevance to our client s position, on the other hand the potential consequence of that is that something may fall under the radar that we indeed would be interested in. Can I ju st append, related to that and following-up from what Mr Arendse has mentioned, a procedural inquiry would be what the protocols would be should the need arise in counsel s mind for what could be called re -direct examination such as the evidence leader j ust engaged with. Is it the case that there too we cross the bridge when we get to it and effectively seek leave for re -direct examination to the extent we consider it necessary with one particular witness?

11 COMMISSIONER: Mr Osborne you re always entitled to make interlocutory applications the clear intent of the Commission however is to remind all parties that this is an investigative process not an adversarial process and that where the Commission considers questions will be appropriate the Commission wi ll permit them to be put but beyond that there is no right of cross -examination because at the end of the day it s not adversarial, the idea is for the Commission to get the information it requires. If at any stage a party thinks that a question needs to b e put for clarity and persuade the Commission of that, there ll be no difficulty with that being put but I think we need to if we re going to try and do this in five weeks we have to try and keep ourselves on the clear train track set by the terms of ref erence and not get distracted. Mr Katz are you happy with the proposal that Mr Hathorn has put? MR KATZ: Yes we certainly are even before he d asked the or made the proposal the City took the view that the five weeks would be more achievable if Mr Hathorn s proposal was to be adopted, rather than the one that has, up to now, been engaged in. COMMISSIONER: Good thank you that s helpful Ms De La Hunt, Mr Matshohi, good evidence leaders coming at the end? MS BAWA: I think advocate Hathorn s concern arises from the fact that he s leading a witness tomorrow afternoon, and he hasn t yet been informed by the Commission as to what the questions of cross -examination are, maybe I must place on record that the Commission only received that application at approximately 10 o clock this morning. COMMISSIONER: Yes I haven t seen an application for cross -examination tomorrow and one of the things tha t may happen, if the Commission considers it necessary to permit questions to be put is to allow a witness to stand down, have the questions put at some other stage, obviously that s of course the Commission will adopt reluctantly because of the implicat ions for time but I have not seen the questions for the witness tomorrow and I do understand that it has been a bit unclear, the witness tomorrow is a witness, Ms Umbumgwana

12 who is brought by SJC, most of the witnesses in these first eight days are witnesses of the evidence leaders but as the questions should come to the Commission anyway and now to all parties, that difficulty should be avoided. W e will look at those questions in the course of the lunch adjournment, Mr Hathorn and we shall be making a ruling on the application for cross -examination, you will be informed as soon as the as will Mr Arendse. MR HATHORN: Thank you Commissioner. COMMISSIONER: Good, alright we will issue a revised notice, not during the lunch adjournment, I hope, on the pro cedure for cross-examination in the light of the discussion we ve had, I d like to thank Mr Simelane for his evidence and permit him to stand down at this stage, the Commission will re -adjourn after an hour s adjournment at quarter past two, thank you very much. COMMISSION ADJOURNS : (at 13:15)