On 5 August 2013, almost two years after its appointment, the Seriti Commission, or to give it the formal name chosen, the Arms Procurement Commission (APC), sat for the first time. Not surprisingly, and without apology, the abortive hearing started late in the Sammy Marks Conference Centre in downtown Pretoria with fire trucks outside, the appropriate rubble of Strydom Square across the road and a host of military men and legal eagles in the auditorium. Cynical junior counsel present tried in vain to calculate the cost per day of the billable time of the assemblage of persons while the media looked on in a state of bemusement at the surreal bizarreness of it all.
Two Commissioners eventually filed in to occupy centre stage, significantly the third chair, to the left of the Chairman, Mr Justice Willie Seriti, remained vacant – bearing mute testimony to the resignation of Mr Justice Francis Legodi “for personal reasons” that remain opaque, but the subject matter of much speculation that tends to undermine the credibility of the APC.
The significance of the empty chair soon became apparent. The Department of Defence legal team was productive during the preceding weekend. It prepared a draft urgent interdict application which was aimed at stopping the hearings scheduled by the APC. The gist of the objection was that appointment of the Commissioners was a joint appointment; in effect the President designed the APC as a tricycle, which could not proceed as a bicycle. The APC conceded the point. Then, one day later, the President decided to formally turn the tricycle into a bicycle instead of to replace the Commissioner who has resigned with one or more substitutes off the bench. Later reports suggest he is having second thoughts about this. Somewhat optimistically, the Chairman tentatively suggested a postponement of a week.
Representing the Department of Defence, Michael Kuper SC, speaking in mellifluous tones that effectively disguised the warning in his words, informed the APC that his client has concerns that no modus vivendi in relation to documents that it regards as confidential, classified and not-yet-declassified has been reached with the APC evidence leaders and that the tenets of natural justice need to be observed in relation to the 11 defence force witnesses, lined up as the first to give evidence to the APC. Kuper asked for two weeks to complete the process of arriving at a modus vivendi that will accommodate his client’s concerns. He was granted the extra week to address the substantial problems that exist. It appears that evidence leaders, all advocates in private practice, have not yet been issued security clearances to access the classified documents relevant to the matter. The existence of these issues makes the assurances that the evidence leaders are ready to start sound somewhat hollow. The hearing was postponed to 19 August.
It is an open question as to whether the APC will actually be ready to start by then. The President has to exercise his constitutional discretion objectively in relation to the shape and size of the commission. He has opted now for a two man show. That won’t do. An uneven number is needed as a tie breaking mechanism. As long ago as May 2011, the man whose indefatigable efforts eventually led later that year to the appointment of a commission, Terry Crawford-Browne, made a suggestion to the President that is worthy of reconsideration. He suggested that only retired judges should serve on the commission. This is based on the reasoning of the court in the litigation that flowed from the appointment of the Nathan Erasmus Commission by Premier Rasool in the Western Cape. It was felt in that case that political issues should not be entertained by sitting judges. There are certainly political issues at play before the APC.
It was also suggested in May 2011 that a five person commission would be optimal: a chair for overall leadership and one retired judge for each of the four deals that have to be investigated for their probity, integrity and possible invalidity for reasons as bland as failure to comply with procurement requirements and as serious as fraud and corruption. An uneven number of commissioners is needed.
If the President wants to show his commitment to getting on top of allegations of corruption, malfeasance and misfeasance that swirl around the arms deal, it would be appropriate for him to reconsider his unworkable “bicycle option” in favour of a five person team. This will have the welcome effect of accelerating the APC’s work rate by holding four simultaneous sessions on a “per deal” basis. This could effectively quadruple the speed at which the APC progresses with its work. The rate of progress thus far suggests that it will take an eternity for the APC, as constituted at present, to reach a conclusion on the legality of what went on when the deals were done at the end of the previous century.
The underlying message in the decision to allow the current two commissioners to continue without reinforcement is a “business as usual” signal from the President. But the public may want and deserve something more than business as usual out of a commission that has been in existence since November 2011 and has yet to hear a single syllable of evidence. This contrasts starkly with the work of the Marikana Commission, which has heard months of testimony in the single year that has elapsed since the shootings that left 34 miners dead on and around Wonderkop.
As long ago as 2001 the warning was sounded by Idasa that the arms deals pose a special challenge to South Africa. They are “the litmus test of South Africa’s commitment to democracy and good governance”. The lack of progress evident in the activity, or inactivity, of the APC is plain for all to see. The resignations of three key players, two staff and one a commissioner, and the reasons given by the former for resigning do nothing to boost the credibility of the APC. The failure of the chairman to respond to questions flowing from the accusation by senior attorney Norman Moabi that he is unwarrantedly controlling, nepotistic and following a second agenda aimed at rubbishing the version of whistle blowers does nothing to enhance the tattered reputation of the APC.
There is still work for the President on the drawing board that was set up by Minister Jeff Radebe as the opportunity to deal for once and for all with the allegations of malfeasance and misfeasance that have dogged the arms deals since their conclusion. The suggestion implicit in Patricia de Lille’s reporting complaints (the APC is obliged to report to the President) is that the current president is himself too compromised to be able to bring an objective judgment to bear in regard to what is to be done about the lack of progress in the APC. If the two remaining commissioners are unable to agree on the way forward on applications, objections, rulings on the status of documents and suchlike, the paralysis in the workings of the APC is likely to continue or even be exacerbated. The swift decision to make do with two commissioners has not been sufficiently considered. It is likely that the President will have difficulty persuading any worthy candidate to join the APC in place of Judge Legodi, given the history outlined above. The surreal sensation that hung over the first hearing is likely to continue. The disappointment, the wasted time and effort and the unwillingness to be transparent, accountable and responsive are likely to continue unless strong political will to address the issues in generated. No such will is discernable; only window dressing, lip service and a proliferation of supposedly anti-corruption bodies that do not possess the necessary independence, clout and resources to address a cancer that is destroying society.
Paul Hoffman SC
6 August 2013.