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Symcox's June 7 testimony

Commission of Inquiry into cricket match fixing and related matters

HELD ON: 07-06-2000

MS BATOHI: Mr COMMISSIONER, the next witness will be Patrick Leonard Symcox.

COMMISSIONER: Mr Symcox, are you prepared to take the oath?

PATRICK LEONARD SYMCOX: (sworn states)

COMMISSIONER: Thank you.

MR FITZGERALD ADDRESSES COMMISSIONER: Thank you, Mr COMMISSIONER. I do have a statement which I wish to hand in, but before handing it up to you there are two aspects with which I need to deal. They both relate to incidents which in our submission are relevant to the Commission, and in particular to paragraph 4, and more particularly 4.1(11) of your Terms of Reference, which relates to approaches having been made to any players. Both incidents, Mr COMMISSIONER, relate to a time-span which, as it were, pre-dates your Terms of Reference.

The first incident relates to a member of the South African National Cricket Team at the time. The second incident relates to a international player, who is obviously not a member of any South African team.

If I may deal with the second incident first. It's a current international player, and for reasons which we submit are valid, Mr Symcox is reluctant to disclose the identity of that player. That player's identity, with respect, doesn't, in our submission, relate to your Terms of Reference in any way, but it is a question which has been put to Mr Symcox in the past and prior to his giving evidence, as to whether he was aware of any other approaches, and he felt duty bound to make such a disclosure. So he is prepared today to make reference to that incident, but would prefer not to disclose the identity of the international player.

COMMISSIONER: I have no problem with that. You give me the assurance that it doesn't detract from the validity or the value of Mr Symcox's evidence, and I am happy to accept from you, and from him, that there's good reason for not disclosing this persons name. Is that also the incident which extends beyond the Terms of Reference?

MR FITZGERALD: That is so.

COMMISSIONER: Yes. Well, there I'm most - I don't know if there will be any objection from anyone, I'm prepared to listen to it, but again I'm happy in these things to trust to Counsels good sense and judgement not to traverse beyond the strict Terms of Reference, unless what is to be covered is relevant to matters which fall within the Terms of Reference. And I think on that basis you can proceed, Mr Fitzgerald.

MR DICKERSON: Mr COMMISSIONER ...(intervention)

MR FITZGERALD: Mr COMMISSIONER, before my learned friend objects, the second incident relates to, again prior to your Terms of Reference and we submit it is relevant, it relates to a South African player. I am mindful of the fact that you do have the power or that your Terms of Reference may be added to, varied or amended in due course. The problem I have is a practical one, is that Mr Symcox is only available this afternoon, regrettably. He leaves for overseas later this week, and will be back in two months time, so unless this evidence stands over for two months while amendments et cetera are sought, it would seem to be from a practical perspective, in my submission, advisable to allow that evidence to be led today, pending any variation. There is a practical consideration in that regard.

COMMISSIONER: MR DICKERSON, do you have a problem with that?

MR DICKERSON ADDRESSES: Mr COMMISSIONER, yes. The one incident that's - well, both incidents that are referred to, but I refer particularly to the latter, falls outside the Terms of Reference. We've been furnished with the information concerning the incident in question, that's alleged to have taken place in 1997. The Term of Reference to which paragraph A4.1(11) refers is the period 1 November 1999 to 17 April 2000. Clearly therefore, an incident in 1997 falls outside the Terms of Reference.

And with respect, as we read paragraph A4.2 of the Terms of Reference, it does not, with respect, empower the Commission to amend the Terms of Reference, but rather to permit the expansion of the Terms of Reference after or upon the Commission making a finding that it is necessary for an earlier period to be investigated. The one is the precursor to the other, and on that basis we would object to the incident in question.

COMMISSIONER: I have to place myself in a position when I - to decide whether or not to admit the evidence if I don't know what the evidence is, in terms of 4.2. Surely the evidence must be led and if I conclude that it's beyond the Terms of Reference as they stand at the moment, subject to Mr Fitzgerald's right to ask me to make the necessary amendment, the evidence can be led, and if it turns out not to be relevant, I shall ignore it.

MR GAUNTLETT ADDRESSES: Mr Chairman, in this regard, my we support our learned friend for the players, Mr Fitzgerald, on two bases? One is, as we understand it, your Terms of Reference give a ...(tape is blank for a few seconds) chronological flare path, but that there may be aspects, for example on the day preceding the commencement of the exact period to which your Terms of Reference relates, which might throw some light on the events within.

But secondly, Mr COMMISSIONER, your Terms of Reference contemplate flexibility and adaptation, and we would respectfully submit that you should receive the evidence, but that you should receive it provisionally and if you decide that for some reason it's irrelevant, then you may discard it. Otherwise, and I don't invite you at this stage to solicit the immediate ruling from the Minister, who I see has joined us, but it would be possible at any stage for you to indicate that you have a certain difficulty in the conduct of the Commission, such as would properly require you to raise with the Minister a possible adaptation of the Terms of Reference.

So we would, in conclusion, suggest the approach adopted by the legal representatives on behalf of Mr Cronje is inexplicable, and that the proper approach is that indicated by Counsel for the other players, and that is provisionally to receive the evidence, subject to a final ruling by you.

COMMISSIONER: You see, I suppose also - I don't know what the evidence is, but I suppose it's also possible, and we are a Commission of Inquiry and not a Court, I emphasise, to receive this evidence as an evidence of tending to propensity for a particular course of conduct. So I think, MR DICKERSON, I shall allow it, and it will be provisionally so, and if I'm satisfied that it's so prejudicial to any member, your client or anyone else, I'm always prepared to reconsider it, or simply ignore it. But we'll carry on, on that basis. Mr Fitzgerald.

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