Special Hearings — Helderberg Flight Special Hearing — 1998-06-03

CHAIRPERSON: Well, there's all sorts of qualifications, even to your acceptance, of the recommendation.  In one breath you say, well, you know, the Board will give consideration to them, but immediately, in almost the same breath you say, from a superficial glance of those recommendations, let's assume that the substance of them had already been adopted in the Board's rough report, or already under consideration by the relevant authorities.  This is a very unsatisfactory treatment of people who say, let us have you giving our report the due consideration, and you didn't and that is why I think, you know ...(indistinct) Hazelman & Thompson are making the disclaimer and are waiving their rights to say, we stand by what we've said and we are not accepting your interpretation of the events, and reserve our rights.  Maybe that later stage that we were talking about is because they anticipated that one day there might have to be a Commission of this nature which would then look into what ...(inaudible)  I still am not satisfied and I'm not passing judgement, I'm still not satisfied why it was not possible for that report to be received.

MR VAN RENSBURG: Mr Chairman, if I may speculate for the moment, I can tell you there must have been a discussion on the merits of the report between all the Board members and the Association and it must have been regarded as not of such material nature that it should have been taken further.  Otherwise they would have followed it up, the door was kept open for the Engineers to come forward at any stage, they can even come today.  If they come today and they put it further then ...(intervention)

CHAIRPERSON: Let's look at what you had had, because it appears that you are now closing, going towards closing the Commission.  You had had a stunning situation where there was one tape which was either missing or had been rubbed off, so that was vital evidence that was not there.  You had professionals who conducted an investigation going through millions of rands from what I'm told, which was making an analysis, an analysis that what showing that contrary to popular belief, that the conversation that was recorded from the cockpit was relating to the last 30 minutes as the aircraft was about to land at Mauritius.  The likelihood was that that recording was of a conversation nearer to when the aircraft had left Taipei when dinner was served, because it was very unlikely that dinner would have been served just on the top of descent.  Now, that is the vital - because we would then have to explain, and that Board would have had to explain, how does it happen that when there is an indication almost immediately after departure from Taipei, I'm talking hours, there is a recording which says, we have a smoke problem.  In other words, it was not a done deal, what's more the - and this was considered by a Captain yesterday, in spite of the fact that he had been giving a lot of theories about might have happened, that pilots, especially crew, take their dinner as and when they want, they can take it in the evening, in the morning, whenever.  Once it was put to him that if it is so that that 30 minute conversation where the voice cockpit recording says, we have a smoke problem, is relevant to the period when the aircraft was just about to descend on Mauritius Airport, Mount Pleasant, whatever.  Then we would expect that recording to correspond with the recording from Mount Pleasant Airport and it was shown beyond a reasonable doubt that there was no correspondence at all, because what was recorded in that aircraft should also have been found to have been recorded in Mount Pleasant.  So that theory seemed call into question any basis on which it could be said that conversation about dinner and women and what have you, was relevant to the period just on top of descent.
 Now, we are saying if that was so, then it was bringing into question a whole list of things and therefor when that sort of information, which was put by Engineers who are professional in their field and had analysed all the voice recordings that was available, and it was sought to be put as being either late in coming or when it came, it had been considered.  We are saying, when there is a corollary allegation that the Judge was in fact ill-disposed to receiving any enquiry that was going to call into question in the entire theory that was saying this fire must have broken out only when the thing was about to land.  Then it calls into question as to whether in fact there wasn't a motive to suppress that information.  I think that's the basis that is being put.

MR VAN RENSBURG: No, no I follow that, Mr Chairman, and I can agree with that, but I still think that your enquiry will be much wiser on the whole thing if the entire chain of events on those meetings, before and at the time with the Judge and before, would be discussed with the Directorate of Civil Aviation, because they were involved in that and they submitted the information.  So I will sincerely say that they must also be given the opportunity to talk to you on this point.

CHAIRPERSON: Mr Magadhla?

MR MAGADHLA: Thank you, Mr Chair.  Mr van Rensburg, were you aware of the fact that the Judge had summoned a witness to his house?

MR VAN RENSBURG: No, sir, I haven't been aware of that.

MR MAGADHLA: Had you been aware, what would you have done?  What would have been your reaction?

MR VAN RENSBURG: Well, Mr Chairman, if you look at the provision of annex 13, the Chairman of the Board of Enquiry is the investigator in charge for all practical purposes.  If he would do so, and in the same breath say that this is an inquisitorial enquiry and you can even listen to hearsay evidence, to circumstantial evidence and that the strong and formal rules of evidence do not apply to this type of investigation, then it is possible that something like this can happen, but I would still say whatever may be coming out of any informal discussion at the Judge's home or wherever must, if there's substance in it, must be put before the Board of Enquiry and I have not reason to believe that that hasn't been done.  I've listened here today and I've heard about a motive of suppressing evidence, now that I must say categorically to you, was not my impression of Judge Margo or any of his Board members that they would do - because it was an international Board of Enquiry and the South Africans were in an absolute minority there, they could have been overpowered by the other Board members.

MR MAGADHLA: Something inquisitorial as you say, would that have involved - were all the other people involved, yourself too involved in the investigation, if this Judge would have just called this person secretly and had a discussion with him only to, maybe to implant in your mind that in an inquisitorial situation he could just do that, wouldn't it be a matter for concern to yourself, especially when he does not, the Judge himself, tell you that, look, I have had occasion to have a one to one meeting with one of these people, this is what he says.

MR VAN RENSBURG: I'm not accurate on this, Mr Chairman, but I'm pretty sure the way I know Justice Margo, that the meeting that took place eventually between himself, the other Board members and all of us present, must have been the follow-up of a meeting that could have taken place at his home, which I'm not aware of, but I'm listening to what you are saying here.

MR MAGADHLA: If you think it was a follow-up, was there any indication in whatever he said that this was a follow-up to a meeting he would have had with certain people?

MR VAN RENSBURG: No, I can't say that because I ...(intervention)

MR MAGADHLA: Why did you say it would have been a follow-up to a meeting that he would have had?