Two Days At The Arms Deal Inquiry

My First Two Days as an IFAISA Intern at the Seriti Commission.

The Arms Procurement Commission (APC) chaired by Judge Willie Seriti has been dogged by scandal in the last few months. The first two days that I spent at the APC were no different.

As an intern with the Institute for Accountability in Southern Africa (IFAISA), I was engaged to assist with noted activist Terry Crawford-Browne's testimony preparation. He was scheduled to give evidence to the APC on March 11th. It is through his work over many years that the APC has come to fruition: a never-ending determination to see the most controversial weapons deals in our (democratic) history thoroughly investigated. Considering that they cost this country an estimated R70 billion and have been discredited as illegal, unconstitutional and tainted by fraud, it is no wonder that Terry, an ex-banker, who organised banking sanctions against the Apartheid state, decided to take a stand.

I was briefed to go the APC premises so that I could inspect some of the documents that Terry had been offered inspection of by the APC and in respect of some of which he had won a High Court discovery order years ago. The International Offers Negotiating Team (IONT) documents are the inside working of the government's team that dealt with arms suppliers and ensure that South Africa received the best return for its investment. Considering that Terry and so many other high profile opponents of the deal (including Archbishop Tutu, Raenette Taljaard and Patricia de Lille to name a few) have accused the government of not fulfilling this basic mandate: the documents are crucial to establishing the truth.

And possibly, therein lies the problem.

On Monday, February 25th 2013 I was welcomed to the APC with open arms. I was shown the most gracious hospitality and had tea, water and general good spirit served to me in abundance. Even my meeting with Advocate Fanyana Mdumbe, the seasoned head of the APC's legal research team, went relatively smoothly. Considering what was written of him in Attorney Moabi's resignation letter, I expected our interactions to be bruising (Mr Moabi was a senior investigator with the APC and resigned accusing Fanyana and Judge Seriti himself of following a second agenda).

Consider this: a recently graduated LLB student from a 'troublesome' campaigner's legal team going up against an experienced advocate who was at the APC on secondment for the Department of Justice and Constitutional Development where he is the Principal State Law Advisor.

I expected to barely make it out of the meeting alive. But I was pleasantly proved wrong.

Mdumbe was most gracious and instructed the APC document managing team to bring me the first two of 9 lever arch files groaning under the weight of the IONT correspondence they contained. I was occasionally checked on and offered more tea. I spent the day reading through the documents noting what may have been of interest to our witness.

But when I returned the next morning, the same Fanyana must have been replaced with his slightly less accommodating doppelganger.

After initially bringing all 9 files to me, two hours after pouring over the close type-script, Mdumbe burst into the room and summarily informed me that I would not be allowed to read the documents anymore. My shocked expression was given a glib explanation: a decision had been made to limit access based on security concerns and that if anything changed it would be communicated to us in time.

Mdumbe was unmoving and indeed when I was joined at noon by my leader, Paul Hoffman SC and Terry himself, we made no headway. It seemed Mdumbe didn't want a fight for our legitimate access to the documents: we were told he had gone to Cape Town.

A few frustrating hours were spent submitting to Judge Seriti - through intermediaries as he refused to see us himself - that the APC was gravely mistaken:

First, Terry obtained a High Court order as far back as 2003 compelling the government (Trevor Manuel and Maria Ramos opposed him unsuccessfully) to allow him access to the documents. This was granted by the court without a need for a confidentiality agreement to be signed. Thus the documents in question could not be that sensitive or Terry would not have been given discovery. Any justification based on the documents being classified does not stand. The court order ought to have been persuasive.

Without getting into the detail of that, Terry's court order was ignored but the self-same documents were made available to the Commission 10 years later. Why the APC attempted to disallow access to the man who sought out the IONT documents in the first place and who needs them for his testimony - which he was invited to inspect by the APC itself - to aid it in its work is bizarre.

Second, and in any event, the APC's own summons of Terry invited him to come and inspect relevant documents to his testimony. As his legal team, that right extends to us too. It is quite baffling that the APC would allow access to documents, facilitate the entire legal team coming to the APC itself at taxpayers' expense to inspect the documents, only to be turned away and told that we could not inspect any longer. Especially when these documents are essential to the testimony that needs to be given.

It is regrettable that only after a threat of urgent legal action was made did Judge Seriti accede to our reasonable requests to be allowed to do what we had been invited to do. This bizarre treatment of Terry, a man who should be thanked for committing his life and all of his own resources to getting to the bottom of the Arms Deals, tends to add credence to Moabi's complaints.

If the APC wishes to inspire confidence in itself, it must not take a hostile attitude towards witnesses and their legal teams. If anything, it should do everything that it can to assist Terry and the other witnesses in the giving of their testimony so that the truth can emerge. The APC is not in place to protect the government: it is in place for reasons of accountability and transparency. Judge Seriti must ensure that the APC is beyond reproach, that it respects the Constitution and it gives real meaning to the mission that it has been accorded. Anything but is a travesty of justice.

As I wrote this, we received confirmation that the APC hearings would be delayed to resume in August. Despite having 17 months to get their house in order, the APC is going to be delayed. Something about 'justice delayed being justice denied' comes to mind.

I am hopeful that this is not the case. Based on a preliminary examination of over 8000 pages which constitute the single IONT document bundle, it cannot be doubted that there are mountains of evidence that need to properly examined in order to uncover the truth. It is thus commendable that the APC has chosen to keep its evidence leaders working hard and is committed to ensuring that the Arms Deal is fully investigated. No matter how long it takes and no matter how hard it may be, the APC must stay the course and use the opportunity it has to restore the faith in public discourse that South Africans have hitherto lost.

This delay gives the APC the opportunity to summons the ANC, its financial records of donations and its internal discussion documents, post-Polokwane, on the arms deals will go some way to doing that. The government too should not pass up the opportunity to come clean or in the alternative, show that it does believe in being transparent, accountable and subscribing to the rule of law in the words of the APC's motto. 

Kameel Premhid holds a BA and LLB from UKZN and was recently awarded the KZN Rhodes Scholarship. He is based at the Institute for Accountability in Southern Africa for a few months before heading to Oxford later this year. Follow Kameel on twitter: @kameelpremhid

Kameel Premhid
04 March 2013

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