Note
What follows in an example of a special report that I did that involved the pilot licence scam of a few years ago. My actions as investigative journalist were the reason why Trevor Abrahams, the CEO of the Civil Aviation Authority (CAA), and personal buddy of Thabo Mbeki and Dullah Omar, was originally arrested. This was due to the fact that I demanded, as member of the public, to cross-examine Abrahams at the public enquiry into the pilot licence scam.
When I addressed my demand to the chairman of the proceedings (a judge) I stated that the panel members have failed in their duty to test the evidence of Abrahams, and that I need to do so in the interest of justice. After a few adjournments, during which the three panel members caucused extensively behind closed doors, I eventually had my way, cross-examined Abrahams, and extracted from him facts on which the police could rely in arresting him.
The police obviously did not have the tool of cross-examination that I used and could therefore not legally extract from him the incriminating facts that I uncovered during my cross-examination. Within hours thereafter he was behind bars. I subsequently wrote an article entitled;
When I addressed my demand to the chairman of the proceedings (a judge) I stated that the panel members have failed in their duty to test the evidence of Abrahams, and that I need to do so in the interest of justice. After a few adjournments, during which the three panel members caucused extensively behind closed doors, I eventually had my way, cross-examined Abrahams, and extracted from him facts on which the police could rely in arresting him.
The police obviously did not have the tool of cross-examination that I used and could therefore not legally extract from him the incriminating facts that I uncovered during my cross-examination. Within hours thereafter he was behind bars. I subsequently wrote an article entitled;
‘SPECIAL AVIATION REPORT
Investigating the antics of the so-called
“Independent” Review Panel of the CAA’.
The report was published in the August 2000 edition of SA Flyer.
All of this took place while people (that included one of my journalistic sources) were fleeing the country due to death threats, and the police insisted that one of my journalistic sources, a senior police officer, and his family, be placed in a witness protection program.
An SAA pilot that contacted me regarding the pilot license scam, was later murdered but I am unable to say whether his murder was related to the communication.
Although the impact of this posting is diminished due to the fact that certain images that appear in the published article are not present on the particular webpage, the words do tell the story of my endeavours.
______________________________________
‘SPECIAL AVIATION REPORT Investigating the antics of the so-called
“Indpendent” Review Panel of the CAA’.
COEN VAN WYK
This article was commissioned by SA Flyer in the interest of aviation. Despite threats and illegal action suffered by “whistle blowers” and scorn directed at this journalist by the so-called “Independent” Review Panel, the endeavours necessary to create this article has doggedly been persisted with, in an attempt to fulfil the role of the media as described in the following comment of the Court in the 1994 case of the Government of the Republic of South Africa v ‘Sunday Times’ newspaper:
“The role of the press in a democratic society cannot be understated. The press is in the front line of the battle to maintain democracy. It is the function of the press to ferret out corruption, dishonesty and graft where it may occur and to expose the perpetrators. The press must reveal dishonest mal- and inept administration. It must also contribute to the exchange of ideas. It must advance communication between the governed and those who govern. The press must act as the watchdog of the governed.”
INTRODUCTION
Since the 26th day of June 2000 there has been some disconcerting developments in the realm of aviation in South Africa, some of which are the manoeuvres, tricks and stratagems that were so deftly employed by a certain, so-called “Independent” Review Panel.
WHAT “INDEPENDENT” REVIEW PANEL?
The “Independent” Review Panel established by the Board of the Civil Aviation Authority when Trevor Abrahams was still the unsuspended CEO of that board.
IS THE “INDEPENDENT” REVIEW PANEL INDEED INDEPENDENT?
You can decide for yourself. Here are some germane facts.
(a) The panel members are Advocate Maleka (chairman), Captain Deryck Leathers, President of the Airline Pilots’ Association of South Africa (ALPA-SA) and Mr John Morrison, Chief Executive of the Airlines Association of Southern Africa. The leader of evidence is Advocate Bokaba.
(b) It is not a presumptuous assumption that, as is the case with any other person involved in panel work (e.g. panel beater, wood paneler), the panel men on the “Independent” Review Panel are rewarded financially for their panel activities. This assumption is fortified by the fact that the chairman of the panel is an advocate and it is trite fact that, with very few exceptions (if any), the only advocate who does not charge a fee for his services, is a dead advocate. It is therefore safe to assume that the panel men of the “Independent” Review Panel are paid by the entity that engaged their services, the Board of the CAA headed, at the time, by Trevor Abrahams.
(c) Captain Leathers, as President of the ALPA-SA ostensible signed the letter of ALPA-SA, dated 30 March 2000. The letter is depicted immediately here below:
The letter appears in the published article.
I submitted a copy of the letter to the “Independent” Review Panel
and it was marked “89 J”.
Depicted immediately here below is a further letter of ALPA-SA, dated 10 April 2000 ostensible signed by Captain Leathers.
The letter appears in the published article.
I submitted a copy of the letter to the “Independent” Review Panel and it was marked “1710”
(d) The following very important considerations apply to the two letters (89J and 1710) of ALPA-SA:
· The wording of both letters are identical and reads as follows:
“Following an open and forthright discussion during a meeting on 30 March 2000, we believe that the CAA and ALPA-SA representatives present now have a clear understanding of the circumstances surrounding the CEO and the CAA’s incident. The communication content and procedures employed were in accordance with standard CAA policy.
ALPA-SA believes that this matter has been satisfactorily concluded and that both parties should pro-actively promote close co-operation on the many significant and serious issues currently facing the industry.”
· Despite the disastrous grammar evidenced by the phrase ”CEO of the CAA’s incident”, it is clear that it was not the intention to refer to the “CAA’s incident” but to the CEO’s incident. The phrase “CAA’s CEO’s incident”, although not better grammar, would at last have been factually correct. It is however clear from the letters that ALPA-SA, and Captain Leathers, in effect exonerated Abrahams regarding his alleged “incident”. What is referred to in ALPA-SA’s letters as an “incident”, is a mishap in which Abrahams was involved at Rand Airport some time ago.
· Despite the fact that ALPA-SA stated in their letter of 9 June 2000, addressed to the CAA and concerning the Abrahams mishap, that it should be investigated “by experienced and suitably qualified accident investigators” and ALPA-SA thereafter also stated in their letter of 15 June 2000, once more addressed to the CAA, that “Accident/incident investigation requires specialised training and skills”, ALPA-SA nevertheless classified Abrahams’s mishap as an “incident” and did so “Following an open and forthright discussion”, (being the opening words of ALPA-SA’s letters of 30 March 2000 and 10 April 2000). Did ALPA-SA make this classification of Abrahams’s mishap by employing “experienced and suitably qualified accident investigators” with “specialised training and skills”?
· It also appears from ALPA-SA’s letters of 30 March 2000 and 10 April 2000 that Leathers and ALPA-SA were satisfied with the “communication content and procedures employed”. I may mention that it appears from the information in my possession that the “communication content and procedures employed”, that met with the approval of Leathers and ALPA-SA, inter alia included a failure by Abrahams to report the mishap.
· The signature on the letters (89J and 1710) differ completely, as will appear from the following:
The signatures appear in the published article.
When I questioned Leathers on that aspect, while the panel was in session, he said that both signatures are his signatures and he described the signature on 1710 as his “signature in long-hand form”. Leathers therefore has two different signatures, a bank manager’s nightmare.
· The wording of the letters is, to put it mildly, toady and creates the distinct impression that it is ALPA-SA’s sincere desire to please Abrahams. Those were in fact the exact sentiments that I expressed when I addressed the panel on 29 June 2000.
I therefore contend that the last mentioned considerations that apply to ALPA-SA’s letters disqualify Leathers from serving on the panel and he should never have accepted an appointment on the panel. In fairness to ALPA-SA, I wish to record that in an Article that appeared in the Mail & Guardian of 6 July 2000 it is stated that ALPA-SA wrote to the CAA in January of this year “demanding an inquiry into the matter” of Abrahams’s mishap at Rand Airport. If the report is correct then it is extremely unfortunate that the toady ALPA-SA letters of 30 March 2000 and 10 April 2000 were ever written. The proper thing to do would be for Leathers to recuse himself since it is clear from the following well-known words, often cited in our courts: that “…it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done”
(e) When Abrahams testified before the panel, the members of the panel and Bokaba subjected him to questioning that possessed the ferocity of that expected from a sedated Teddy Bear. He was not questioned on any of the vast number of issues raised in newspaper reports which included the following:
· A report in the Sunday Independent of 14 May 2000 that the pilot of a Piper chieftain on a commercial flight did not have a commercial pilot’s licence.
· A report in the Beeld that he failed to report an accident in which he was involved.
· A report in the Beeld regarding his super-human feat when he was doing all of the following things at the same time:
1. He visited Cape Town on CAA business.
2. He was on a training flight between Lanseria, Pietermaritzburg and Germiston.
3. He undertook a flight between Cape Town and Langebaan.
· A report in the Mail & Guardian of 19 May that read: “Trevor Abrahams’s own licence is under investigation….”
While Abrahams was testifying the panel and Bokaba subjected him to gentle, thoughtful, considerate and accommodating questioning and had I not intervened, he would have walked away without having been subjected to any probing questions.
(f) After the panel and Bokaba had done with their questioning of Abrahams, the following transpired:
· The panel vigorously resisted my attempts to cross-examination Abrahams.
· When I persisted with my efforts I was eventually allowed to question him but I was severely restricted regarding the scope of my questions.
· When, despite the restrictions imposed on me, my questions still showed promise of being effective, further restrictions were imposed that effectively stopped my probing questions and the panel furthermore launched a scathing attack on my integrity by accusing me of abusing the proceedings.
· When I addressed the panel on the legal principles applicable to the proceedings, Maleka told me that the panel has made up its own rules.
· At Abrahams’s request he was allowed to give further evidence in the “public hearings” behind closed doors..
(g) An article in Rapport states that Abrahams caused a commotion on Friday the 7th of July when he successfully disrupted the evidence of Colin Weir when he was testifying before the panel. The article goes on to say that the panel upheld Abrahams’s objection that Weir’s evidence is irrelevant but that it was later conceded that the evidence is indeed relevant. I only know one thing and that is that if I was the CEO of the CAA, out on bail after having been arrested for defeating the ends of justice, then I would not be so insolently assured to obstruct a process that is intended to be aimed at investigating serious crimes committed in my organization. But, on the other hand, the Rapport article states that Abrahams was in effect supported by the panel in his objection.
Therefore if I take into consideration;
· the fact that the panel was appointed by the Board of the CAA, with Abrahams as CEO;
· the unfortunate contents of the presumptuous, toady ALPA-SA letters signed by Leathers;
· the kid gloves treatment of Abrahams when he appeared before the panel;
· that Abrahams was not asked any questions by the panel, or Bokaba, on the vast number of issues raised in newspaper reports, which included his own aviation licences and his miraculous feat of being in three different places at the same time. In the last mentioned regard he could also have been asked whether, if the reports were in fact true, he was remunerated, at the time, at three times his basic rate of remuneration. After all is said and done, he was being productive on three fronts.
· the manner in which Abrahams was shielded against my probing questions;
· the fact that, after I had questioned him, Abrahams was allowed to give evidence behind closed doors, where no member of the public, including myself, was allowed to be present, which would have enabled him to repair any damage that I may have inflicted with my questions;
· the fact that the panel ignored rules of procedure and made up its own rules;
· the fact that Abrahams was reportedly allowed by the “independent” panel to disrupt the evidence of Colin Weir;
then I am unable to form the opinion that the panel is independent and I have heard opinions from the public that are worded in much stronger terms.
WHAT RULES OF PROCEDURE DID THE PANEL EMPLOY?
Its own rules.
SAYS WHO?
Says Maleka, the chairman of the panel, when I addressed him on the law of evidence pertaining to cross-examination.
WERE THE PANEL’S RULES OF PROCEDURE EVER MADE KNOWN?
No.
DOES THE PANEL HAVE ANY LEGAL VALIDITY OR POWERS?
Legal validity: No!
Legal powers: No!
WHY DOES THE PANEL LACK LEGAL VALIDITY OR POWERS?
What follows is the short answer to the question:
(a) The South African Civil Aviation Authority (CAA) was established as a juristic person in terms of section 2 of act number 40 of 1989.
(b) The fact that the CAA is a juristic person means that it a fictitious person and its rights are spelled out in the legislation that led to its birth (Act 40 of 1998).
(c) The CAA has never been given any powers, in its founding legislation or any other legislation to establish a commission of inquiry or review panel or any similar body.
(d) The Commissions Act makes provision for the appointment of a commission by the head of state for the purposes of investigating a matter of public concern and he may by proclamation in the Gazette declare the provisions of any law to be applicable with reference to such commission and inter alia make regulations providing for the procedure to be followed at the investigation.
(e) A commission validly appointed in terms of the Commissions Act has the powers which a Provincial Division of the High Court has to summons witnesses, cause an oath or affirmation to be administered to witnesses, to examine the witnesses and to call for the production of books, documents or objects.
(f) Maleka’s panel was not created in terms of the Commissions Act, has no authority to call witnesses or administer the oath.
IF IT HAD LEGAL VALIDITY, COULD THE PANEL MAKE IT’S OWN RULES OF PROCEDURE?
The answer is to be found in the following:
(a) The constitution stipulates that everyone has a right to have a dispute resolved in a fair public hearing and that the applicable rules and procedures must be in terms of national legislation.
(b) A fair public hearing presupposes that rules of evidence and legal procedure developed over centuries and incorporated in our law as common law and by way of legislation will be followed and will not whimsically be discarded and arrogantly be replaced by rules that are pragmatically construed.
(c) During any proceedings conducted in a court of law, tribunal or forum, one of the rules of procedure that is of paramount importance, is a rule of evidence that provides for the testing of evidence by way of cross-examination.
(d) As far as administrative action is concerned The Bill of Rights of the Constitution stipulates that everyone has the right to administrative action that is lawful.
Therefore, the question as to whether the “Independent” Review Panel can make up its own rules must be a fat “NO”. If the courts, commissions that are legally constituted, and the state administration are all obliged to act in terms of the current law, what makes Maleka’s panel so special that it does not have to follow suit?
IF IT DOES NOT HAVE LEGAL VALIDITY, COULD THE CONDUCT OF THE PANELISTS CONSTITUTE A CRIMINAL OFFENCE?
An answer to the question may be found by considered information regarding the following crimes:
· Contempt of court.
· Obstructing the course of justice, defeating the course of justice or obstructing and defeating the course of justice.
· Any crime that may be committed if a person acts in contravention of the Justices of the Peace and Commissioners of Oaths Act.
Contempt of court.
After Abrahams was arrested the matter became sub judice which means that the following considerations became applicable to any person involved in the publishing of information or comments:
· Writing or sayings referring to a case which is sub judice and tending to prejudice the true decision of that case amount to contempt of court.
· The sub judice rule applies from the moment that the proceedings were instituted by the arrest of Abrahams.
· What is published must have the potential to influence the end result of the proceedings. The test is very wide since it is not even necessary that publication had come to the attention of the court, or if it did, that the court believed it, or was influenced by it. No actual prejudice is required and even potential prejudice can lead to a conviction.
It is not difficult to foresee the possibility that the actions of the panel could prejudice the case against Abrahams or has the potential to influence the end result of the proceedings against him and the same applies to the other persons accused regarding the licence shenanigans.
Obstructing, defeating the course of justice.
Defeating or obstructing the course of justice consists in the lawful and intentional commission of any act which defeats or obstructs the course of justice.
Section 60 of the Criminal Procedure Act deals with the aspect of the granting of bail and one of the questions of importance, when a court considers a bail application, is whether the accused will interfere with State witnesses or the police investigation. In this matter we have a panel that interacts with the accused, Abrahams, interacts with State witnesses, and allows or condones the interaction of the accused, Abrahams, with State witnesses. And what is of further importance is the fact that Advocate Johan Brand of the Pretoria Bar tactfully alerted Maleka to the legal considerations on 26 June, before the panel commenced its activities. Adv. Brand did this when he appeared before the panel, inter alia on behalf of Manie Esterhuizen, mentioned that a criminal case is sub judice, pointed out to Maleka the fact that the panel lacks legal standing and suggested that the proceedings stand down so that the Minister of Transport can be requested to request the State President to appoint a commission of inquiry in terms of the Commissions Act. Maleka confirmed that he is aware of the criminal proceedings and thereafter pressed on like a bull in a china shop.
Wow! At my age I thought that I have seen it all.
Contravention of the Justices of the Peace and Commissioners of Oaths Act (No. 16 of 1963).
It is a criminal offence to pretend to be a member of the police force and similar offences are created in terms of other legislation. For example, it is a criminal offence for a company to publish the name of a person as a director of the company, when such a person is not a director.
Act 16 of 1963 makes provision for the appointments of commissioners of oaths with powers to administer the oath or an affirmation. What is the position if a person who has not been appointed as commissioner of oaths administers the oath? Has such a person committed a crime? If a crime has been committed by the bogus commissioner of oaths, is the crime one of fraud or is it one or other statutory offence?
I may mention that I asked Maleka on what basis he has the authority to administer the oath and he said that he is doing so as chairman of the panel.
But the panel was not appointed by the President! So, what happens now?
I quote the following pertinent contents of e-mail that Colin Weir of Zephyr-Flo Aeronautics CC (Aviation Consulting/Flight Safety Auditors) received from the Manager, Airmen Certification Branch of the Federal Aviation Administration (FAA):
“After reviewing our records on Mr. Abrahams, it was discovered that an error had been made in the ratings on his original commercial pilot certificate when it was issued on August 14, 1983. He was given the airplane multiengine rating at the commercial level. We have corrected our records and will reissue the certificate correctly. Mr. Abrahams will be notified of this error and the reason for the correction. When this certificate is mailed to Mr. Abrahams, he will be requested to return the incorrect certificate now in his possession.”
Two questions that need urgent attention are the following:
1. Did Trevor Abrahams state in his evidence before the so-called Independent Review Panel, established by the CAA that he holds an airplane multiengine rating at the commercial level?
2. Did Trevor Abrahams state in his CV, when he applied for the position of CEO of the CAA, that he holds an airplane multiengine rating at the commercial level?
(a) The South African Civil Aviation Authority (CAA) was established as a juristic person in terms of section 2 of act number 40 of 1989.
(b) The fact that the CAA is a juristic person means that it a fictitious person and its rights are spelled out in the legislation that led to its birth (Act 40 of 1998).
(c) The CAA has never been given any powers, in its founding legislation or any other legislation to establish a commission of inquiry or review panel or any similar body.
(d) The Commissions Act makes provision for the appointment of a commission by the head of state for the purposes of investigating a matter of public concern and he may by proclamation in the Gazette declare the provisions of any law to be applicable with reference to such commission and inter alia make regulations providing for the procedure to be followed at the investigation.
(e) A commission validly appointed in terms of the Commissions Act has the powers which a Provincial Division of the High Court has to summons witnesses, cause an oath or affirmation to be administered to witnesses, to examine the witnesses and to call for the production of books, documents or objects.
(f) Maleka’s panel was not created in terms of the Commissions Act, has no authority to call witnesses or administer the oath.
IF IT HAD LEGAL VALIDITY, COULD THE PANEL MAKE IT’S OWN RULES OF PROCEDURE?
The answer is to be found in the following:
(a) The constitution stipulates that everyone has a right to have a dispute resolved in a fair public hearing and that the applicable rules and procedures must be in terms of national legislation.
(b) A fair public hearing presupposes that rules of evidence and legal procedure developed over centuries and incorporated in our law as common law and by way of legislation will be followed and will not whimsically be discarded and arrogantly be replaced by rules that are pragmatically construed.
(c) During any proceedings conducted in a court of law, tribunal or forum, one of the rules of procedure that is of paramount importance, is a rule of evidence that provides for the testing of evidence by way of cross-examination.
(d) As far as administrative action is concerned The Bill of Rights of the Constitution stipulates that everyone has the right to administrative action that is lawful.
Therefore, the question as to whether the “Independent” Review Panel can make up its own rules must be a fat “NO”. If the courts, commissions that are legally constituted, and the state administration are all obliged to act in terms of the current law, what makes Maleka’s panel so special that it does not have to follow suit?
IF IT DOES NOT HAVE LEGAL VALIDITY, COULD THE CONDUCT OF THE PANELISTS CONSTITUTE A CRIMINAL OFFENCE?
An answer to the question may be found by considered information regarding the following crimes:
· Contempt of court.
· Obstructing the course of justice, defeating the course of justice or obstructing and defeating the course of justice.
· Any crime that may be committed if a person acts in contravention of the Justices of the Peace and Commissioners of Oaths Act.
Contempt of court.
After Abrahams was arrested the matter became sub judice which means that the following considerations became applicable to any person involved in the publishing of information or comments:
· Writing or sayings referring to a case which is sub judice and tending to prejudice the true decision of that case amount to contempt of court.
· The sub judice rule applies from the moment that the proceedings were instituted by the arrest of Abrahams.
· What is published must have the potential to influence the end result of the proceedings. The test is very wide since it is not even necessary that publication had come to the attention of the court, or if it did, that the court believed it, or was influenced by it. No actual prejudice is required and even potential prejudice can lead to a conviction.
It is not difficult to foresee the possibility that the actions of the panel could prejudice the case against Abrahams or has the potential to influence the end result of the proceedings against him and the same applies to the other persons accused regarding the licence shenanigans.
Obstructing, defeating the course of justice.
Defeating or obstructing the course of justice consists in the lawful and intentional commission of any act which defeats or obstructs the course of justice.
Section 60 of the Criminal Procedure Act deals with the aspect of the granting of bail and one of the questions of importance, when a court considers a bail application, is whether the accused will interfere with State witnesses or the police investigation. In this matter we have a panel that interacts with the accused, Abrahams, interacts with State witnesses, and allows or condones the interaction of the accused, Abrahams, with State witnesses. And what is of further importance is the fact that Advocate Johan Brand of the Pretoria Bar tactfully alerted Maleka to the legal considerations on 26 June, before the panel commenced its activities. Adv. Brand did this when he appeared before the panel, inter alia on behalf of Manie Esterhuizen, mentioned that a criminal case is sub judice, pointed out to Maleka the fact that the panel lacks legal standing and suggested that the proceedings stand down so that the Minister of Transport can be requested to request the State President to appoint a commission of inquiry in terms of the Commissions Act. Maleka confirmed that he is aware of the criminal proceedings and thereafter pressed on like a bull in a china shop.
Wow! At my age I thought that I have seen it all.
Contravention of the Justices of the Peace and Commissioners of Oaths Act (No. 16 of 1963).
It is a criminal offence to pretend to be a member of the police force and similar offences are created in terms of other legislation. For example, it is a criminal offence for a company to publish the name of a person as a director of the company, when such a person is not a director.
Act 16 of 1963 makes provision for the appointments of commissioners of oaths with powers to administer the oath or an affirmation. What is the position if a person who has not been appointed as commissioner of oaths administers the oath? Has such a person committed a crime? If a crime has been committed by the bogus commissioner of oaths, is the crime one of fraud or is it one or other statutory offence?
I may mention that I asked Maleka on what basis he has the authority to administer the oath and he said that he is doing so as chairman of the panel.
But the panel was not appointed by the President! So, what happens now?
I quote the following pertinent contents of e-mail that Colin Weir of Zephyr-Flo Aeronautics CC (Aviation Consulting/Flight Safety Auditors) received from the Manager, Airmen Certification Branch of the Federal Aviation Administration (FAA):
“After reviewing our records on Mr. Abrahams, it was discovered that an error had been made in the ratings on his original commercial pilot certificate when it was issued on August 14, 1983. He was given the airplane multiengine rating at the commercial level. We have corrected our records and will reissue the certificate correctly. Mr. Abrahams will be notified of this error and the reason for the correction. When this certificate is mailed to Mr. Abrahams, he will be requested to return the incorrect certificate now in his possession.”
Two questions that need urgent attention are the following:
1. Did Trevor Abrahams state in his evidence before the so-called Independent Review Panel, established by the CAA that he holds an airplane multiengine rating at the commercial level?
2. Did Trevor Abrahams state in his CV, when he applied for the position of CEO of the CAA, that he holds an airplane multiengine rating at the commercial level?
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