On Wednesday, the findings of the Seriti commission which was set up to investigate the 1999 R30bn arms deal, were set aside.
Judge President Dunstan Mlambo handed down a precedent-setting judgment – the first to review the findings of a commission of inquiry.
Judge Mlambo reiterated that the review did not concern allegations of corruption against those implicated in the deal, but rather “whether the commission’s proceedings complied with the principles of legality”.
The scathing judgment set aside the findings and ordered the minister of justice and correctional services, the president, the minister of defence and the minister of trade and industry to pay the costs of the applicants.
This includes the costs of the three counsel.
“It is clear that the commission failed to enquire fully and comprehensively into the issue which it was required to investigate on the basis of its terms of reference,” Judge Mlambo said.
He added that the commission had failed to properly interrogate key witnesses to the deal. In particular, chief of acquisitions for the South African National Defence Force during the arms deal, Chippy Shaik, and controversial businessman involved in the deal, advocate Fana Hlongwane.
While the commission exonerated former president Thabo Mbeki, Judge Mlambo said it had ignored evidence indicating otherwise.
“The commission accepted evidence that [he] had played no part in the awarding of the sub-contracts to Thompson-CFS, despite evidence of an encrypted fax which implicated him the awarding of the Thompson- CFS contract.”
‘Failed to confront these witnesses’
The letter indicated that Thompson-SFC, now Thales Group, and African Defence Systems had sought political backing, and that Mbeki had given assurances that the defence contractor would be awarded a “combat suite and its sensors”.
Despite the many allegations against witnesses involved in the deal, the commission had “failed to confront these witnesses with these allegations which were made against both in respect of corruption and wrongdoing”.
This, Judge Mlambo said, was evident in the line of questions put to the witnesses. The commission simply asked questions and accepted the denials.
A commission could not work this way, Judge Mlambo added, where, despite the wealth of documentation, reports and records available, it still asks “peripheral questions to implicated witnesses and thus fail to test the veracity of the evidence”.
The judgment deals in depth with the commission’s treatment of these witnesses, specifically Hlongwane, who Judge Mlambo said “was treated even more generously, in that no questions were put to him by the commission”.
Judge Mlambo called for further investigation into Hlongwane’s witness statement, which lacked key information and contained blatant inaccuracies when compared to other affidavits submitted to the commission.
“There was no attempt to confront advocate Fana Hlongwane with that which had been alleged in the [Serious Fraud Office] SFO affidavit, namely that Hlongwane Consulting had been paid more than £10m between September 2003 and January 2007.”
‘Seriously hobbled its investigation’
Judge Mlambo then turned to the chairperson of the commission, Judge Willie Seriti.
“He adopted the position that the evidence given by what were referred to as non-critical witnesses were ‘known facts’, and evidence given by critical witnesses […] were mainly theories.
“But it is evident in the record of the commission, for example, of its approach to Mr Chippy Shaik and advocate Hlongwane, when it came to implicated witnesses, the commission became supine.”
Evidence submitted to the court also stated that the commission had not accessed relevant information held by international companies involved in the deal.
“This was a reference to the commission’s refusal to initiate diplomatic processes to access information held by German, Swiss, Swedish, the West Indies and Liberian authorities,” Judge Mlambo said.
This “seriously hobbled its investigation”.
Judge Mlambo further lambasted these failures by the commission, saying it had impacted the country’s democracy.
“In this case, the objects were to investigate with an open mind in order to reveal the truth to the public on a matter of the utmost public important, one, as we have indicated, which had be-devilled the constitutional democracy in this country since dawn.
“The commission failed manifestly to enquire into key issues as is to be expected of a reasonable Commission.”
Judge Mlambo said the commission had a flawed understanding of the “law of privilege”.
“Where the uncontested evidence reveals so manifest a set of errors of law, a clear failure to test evidence of key witnesses, a refusal to take account of documentary evidence which contained the most serious allegation which were relevant to its inquiry, the principle of legality dictates only one conclusions, that the findings of such a commission must be set aside.”
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