Special Hearings — Helderberg Flight Special Hearing — 1998-06-01

MICHAEL PETER MITCHELL: Mr Magadhla, the tape was brought, to answer your question directly, probably sometime later, because it went to Civil Aviation, they took the tape and they played it.  Then they came back and said there was nothing on the tape.  As far as I know, nobody in South African Airways played the tape.

MR MAGADHLA: When you had the tape locked up then, was it after it had been discovered that it had nothing?

MICHAEL PETER MITCHELL: No, no, the tape, sir, came from ZUR, whoever went to go and get it, go and get the tape, and I remembered this as an afterthought, it wasn't part of my priorities at all, in fact, it didn't fit very high on the whole discussion as I mentioned, I don't want to labour the point, that HF transmission didn't happen, so it didn't mean a thing in my life.  And I stand on that point, and when we locked it up, and I really don't know when, it could have been - I don't think it was the next morning, but I know we got the log and it got locked up.  When DCA came, Mr DCA, it could have been a person from or persons from DCA to come and get all the information, then we gave it to them, and then they came back to us a time later, I'm sorry I'm not accurate with the time, sir, it's a time later, then they came back and said there's nothing on there.  And this wasn't that night, it wasn't a week later, probably even a month later, am I right, yes, it's about that.

DR KLATZOW: That is absolutely correct, DCA came to you a month later, but they were not given a tape that was taped over, they were given a tape of the wrong day, Captain Mitchell.

MICHAEL PETER MITCHELL: I'm aware of that now.

DR KLATZOW: Yes, now, that's the issue I want to get to.

MICHAEL PETER MITCHELL: Alright.

DR KLATZOW: No 1, the tapes are clearly marked,

MICHAEL PETER MITCHELL: Yes.

DR KLATZOW: No 2, that tape was in and under your control.

MICHAEL PETER MITCHELL: Dicky Rouxcastle actually.

DR KLATZOW: You were the man who was at the Head of the ...(intervention)

MICHAEL PETER MITCHELL: I have many people who work for me, Dr Klatzow, I can assure you I had a good deal more that to worry about locking up a tape, I have a highly responsible Director Administration, of very very ...(indistinct) experience.  He locked it up there, I knew it was there and I was quite happy that he did it.

DR KLATZOW: Did you ever go to Mr Rouxcastle and say to him, what happened to the tape?

MICHAEL PETER MITCHELL: I can - I was with him when DCA came to fetch all the documents because the signed for it, and also, the tape wasn't lost, can we correct that, you've just said it was another tape.

DR KLATZOW: Yes, well tell me.

MICHAEL PETER MITCHELL: If anything, it was taped over again.

DR KLATZOW: Right.

MICHAEL PETER MITCHELL: So we can establish that as a more accurate process.

DR KLATZOW: Well, we're going to deal with that, because if that were the case, Margo was never informed of that.

MICHAEL PETER MITCHELL: I don't know that.

DR KLATZOW: Well, his finding made the following conclusion, "The tape was either taped over inadvertently or lost".  Now, if the tape had been inadvertently taped over, it was perfectly possible for you, Captain Mitchell or one of the other people who along the line of tape, to address the Judge through your legal advisor and said, Judge, the tape has been taped over, there was an administrative error, here is the tape.  Why did you never do that?

MICHAEL PETER MITCHELL: Will you say that again.

DR KLATZOW: If the tape - the Judge's findings were quite unequivocal, they were to the effect that the tape had either been taped over or lost.

MICHAEL PETER MITCHELL: Okay.

DR KLATZOW: If the tape, as you have unequivocally stated under oath now, had been taped over, what stopped you from going to the Judge through your legal advisor and saying, Judge, there is the tape, there is the markings on it which identifies the tape of that day, we have blued and taped it over.  What would stop you doing that?

MICHAEL PETER MITCHELL: Let me just correct you there, Dr Klatzow.  You said that I've just said unequivocally under oath that the tape was taped over, I did not say that.

DR KLATZOW: What did you say?

MICHAEL PETER MITCHELL: I said that is a possibility that it was taped over, I gave the indication, I did not say it was taped over.

DR KLATZOW: Captain Mitchell, I would like to have the record played back, but that is not what you said.

CHAIRPERSON: What you said actually, Captain Mitchell, was that the correct position is not that the tape was lost, but that it was taped over.  It was not stated as a possibility.  It was in fact stated as fact as an effort to correct an impression that it is either/or ...(intervention)

MICHAEL PETER MITCHELL: Either lost.

CHAIRPERSON: Yes.  You were very emphatic about that, that's what we wanted to say by being stated unequivocally.  It is your considered opinion, not opinion, statement or fact actually that it was not lost, it was taped over.  If you want to revise that opinion ...(intervention)

MICHAEL PETER MITCHELL: No, I think probably you said it better than I have, yes.  No, I accept that, you said it better than I have, but to answer the question for Dr Klatzow, he said why didn't I tell the Judge, sir, that's what the investigator's job is, he had the tape and he knew that, and it was his job as the investigator to tell the Judge, not my job.

DR KLATZOW: Captain Mitchell, you were the man in the hot seat, you were the man who had the tape in your hands, your were the man who could have provided an explanation whilst the hot debate was raging in court.  You never did that.

MICHAEL PETER MITCHELL: Sorry, I don't agree with you.  The tape was with the investigator.

DR KLATZOW: No, the tape got to the investigator from your hands.

MICHAEL PETER MITCHELL: Yes, but the tape was in the hands of the investigator ...(intervention)

DR KLATZOW: It was the wrong tape, Captain Mitchell.

MICHAEL PETER MITCHELL: The tape was in the hands of the investigator who knew ...(intervention)

DR KLATZOW: It was the wrong tape.

MICHAEL PETER MITCHELL: I'm sorry, I don't see the point.

DR KLATZOW: You gave the DCA investigators the wrong tape.  You didn't give them a taped over tape, you gave them a tape of the next day.

MICHAEL PETER MITCHELL: I'm not aware, I'm not aware of that.

DR KLATZOW: Well, that is ...(intervention)

CHAIRPERSON: That was put to you just - I think you must be - okay, Captain Mitchell it may be at the end of a long day, but I think you must allow yourself to listen to what is being put to you because some of it may escape you if you are not listening.  Dr Klatzow did say to you that that was the wrong tape because, I think he said it was the tape of the previous day, or the next day, and then you seemed to accept that because you didn't contest it.  I think he's putting it to you now, that what you gave to DCA ...(intervention)

MICHAEL PETER MITCHELL: Yes.

CHAIRPERSON: Was the wrong tape in that it did not pertain to the day and issue, and you seem to be confirming that by saying that the tape in fact that was relevant is the one that was run over.  Do you understand what I'm saying?

MICHAEL PETER MITCHELL: Then you're saying there were two tapes?