On 12 November 2008 the Social Justice Coalition (SJC) held a protest meeting in St George’s Cathedral in Cape Town. The theme of the evening was its demand for the appointment of a commission of inquiry into the arms deals. The entire leadership of the SJC was present for the occasion, the culmination of a series of meetings designed to enhance public awareness of the rights and responsibilities of ordinary citizens of the new South Africa. The historic significance of the venue, a traditional seat of struggle with the nickname “the people’s cathedral”, was not lost on those present. The singing and the vibrant energy generated by filling the space available with citizens sufficiently concerned about the issues of accountability and possible corruption around the arms deals was a heady mix.

A humble victim of a shack fire spoke movingly about the lot of those who have no proper housing and have to rely on wood and paraffin for cooking and light. The main speech of the evening was delivered by Paul Holden, a young historian, who gave those present the benefit of his not inconsiderable research into the procurement process that preceded the arms deals. He is the author of the third book written on the subject, “The arms deal in your pocket”, a work which is required reading for anyone who cares about the future of South Africa. The others are my “Eye on the Money” and Andrew Feinstein MP’s “After the Party”.

Holden did not mince his words: the acquisition of arms we don’t need, with money we had to borrow, to defend ourselves against enemies we don’t have, all at a time when the socio-economic realities of the new dispensation demanded poverty alleviation, properly serviced housing, schools, clinics and hospitals for all, were concisely laid out for public scrutiny. The cost of the warships, aeroplanes and helicopters – after taking into account the overlooked matters of interest on loans, inflation and currency fluctuations – is now in the order of R 70 billion. This is enough to build a lot of houses, schools, clinics and hospitals. Holden and Feinstein have gone on to collaborate on a new book exposing the skulduggery in the international arms trade which will shortly be published under the title “The Shadow World”. They work in London, but no doubt long for home.

At the meeting in the cathedral, which I attended, were some lawyers with social consciences. I met one of them, Paul Hoffman SC, at the end of the meeting. He was in animated discussion with Holden, inspired by the content of the speech to give consideration to litigating the anticipated refusal of the demand for the appointment of a commission of inquiry into the possibility of wrongdoing in the procurement of the arms. Less than a month later, Hoffman and I succeeded in getting Archbishop Desmond Tutu, former president FW de Klerk as well as Mamphela Ramphele and the late Helen Suzman to sign a request to then President Motlanthe for the appointment of the necessary commission. This request supplemented the petition organised at grass roots level by the SJC. They asked for a reply by International Human Rights Day – 10 December. It came, two days late. The President politely but firmly refused the request. He gave as his reason that his confidence reposed in the criminal justice administration and that the supplicants should report any evidence of corruption or other wrongdoing to the police or the prosecution services.

I had already done that in August 2008. Richard Young, as early as March 2008, had received acknowledgement of receipt of his request for investigation of corruption in the arms deals from Billy Downer SC, then a leading member of the Scorpions. Neither of us has had any follow up on our complaints. Instead, General Anwar Dramat, the head of the Hawks, (the tame replacements for the Scorpions who are vulnerable to interference, intimidation and undue influence) announced the closure of all investigations into possible wrongdoing in the arms deals on 30 September 2010. This is hardly a surprise. The Scorpions were dissolved because they fearlessly and independently investigated corruption in high places. At the time President Motlanthe so refused, their dissolution was in full swing – giving effect to a December 2007 Polokwane conference resolution of the ANC. There was no Chief of Police – Jackie Selebi was suspended – under investigation for corruption and the National Director of Public Prosecutions, Vusi Pikoli was suspended and later dismissed. Selebi has since faced trial and has been convicted; Pikoli has been exonerated and was paid a handsome settlement but was not re-instated; the propriety of replacing him with Menzi Simelane is being litigated.

President Motlanthe’s refusal created a dilemma: neither the signatories of the request nor the SJC were prepared to litigate, understandably so. Instead, a protest march at the opening of parliament in 2009 was organised. Max Price, the Vice Chancellor of UCT, addressed the marchers in Roeland Street, but the President remained unmoved. The commission of inquiry would not be forthcoming voluntarily. Over the years every political party other than the ANC, many NGOs, trade unions and the churches have called for an inquiry, all to no avail.

So, I decided to litigate the matter. In our constitutional democracy, so I am advised the decision to appoint a commission of inquiry is that of the President and him alone. In his capacity as Head of State, he has to act reasonably, without capriciousness or arbitrariness, in good faith and rationally – in accountably and responsively coming to a decision on whether or not to appoint a commission of inquiry. The “fundamental fairness” element of the rule of law ought to guide the policy decision involved in the process. It is indubitably a political issue, but how any decision involving the discharge of a constitutional obligation is arrived at has to accord with the requirements of legality and rationality. That is the beauty of having a supreme Constitution under which conduct inconsistent with its requirements is invalid. It is also how the rule of law works for the ordinary people of the land.

My claim for an order compelling the appointment of a commission of inquiry into possible wrongdoing in the procurement of arms in the 1999 arms deals will be heard by the Constitutional Court on 5 May 2011. The President is opposing the matter. The SA Institute of Race Relations has been admitted as a friend of the court to present its own arguments. Its CEO, John Kane-Berman, has, in the part he played in the APRM inspired review of parliament, previously called on parliament to demand a commission of inquiry into the arms deals. The response of officialdom to the allegations of wrongdoing in the arms deals has been called ‘the litmus test’ of our national commitment to good governance. I remain optimistic that this test will be passed with flying colours and that a sizeable proportion, if not all, of the R 70 billion can be recovered to serve the common good, when the necessary processes have run their course. It is my hope that all patriotic South Africans share my optimism and support my quest.

Terry Crawford-Browne.
1st May 2011.