There was a flurry in the parliamentary standing committee on public accounts (SCOPA) dovecote last week when the SAPS top brass in the form of head of the Hawks, Anwar Dramat, asked whether it would be “in the national interest” to pursue further investigations into the arms deals. He asked bemused members of SCOPA for what he called “an executive decision” on whether or not to spend an estimated R10 million and perhaps another ten years on the complex issues and the huge amount of documentation pertaining to them which the Hawks have inherited from the Scorpions.

Dramat’s question went unanswered. By asking it he betrayed a worrisome ignorance of the separation of powers and of the independence of the prosecuting authority. He was quickly apprised of the difference between the legislature and the executive and told that “executive decisions” are the business of the latter and not the former. Matters of prosecution policy are of course in the hands of Menzi Simelane in his capacity as National Director of Public Prosecutions. Dramat’s question regarding the national interest is, however, pertinent to the legal and financial context in which the country finds itself at present. And it points to a possible civil law solution to some of the thorny issues which the arms deals continue to raise.

The phrase “in the national interest” is one which features prominently in the debate raging around the Protection of Information Bill. Critics of the bill suggest that protection of information ought to be limited to the far narrower issues of “national security” because “the national interest” is so wide and indefinable a concept as to mean all things to all men, depending on the context in which it is used. Cynics may suggest that the obvious foot dragging in respect of the arms deals investigations can be attributed to a desire to await the passage of the Bill into law, at which time a bulk classification of all documents relating to the arms deals will be made and the issue will be effectively buried for all time.

This can not legally be done as there is an expressly legislated commitment to continuing all investigations handed to the Hawks by the Scorpions upon the demise of the latter. The arms deals investigations are among the matters so inherited.

Dramat revealed to SCOPA that in its final days the Scorpions unit conducted seven court sanctioned search and seizure operations during November 2008. In these operations some 460 boxes of files plus 4.7 million computer pages of documents were seized, all of which are now the responsibility of the Hawks. It must be noted that these documents relate only to the British Aerospace (BAe) contract for the Hawk and SAAB Gripen fighter aircraft acquired by South Africa. So far only 7 out of 28 Gripens have been delivered. The total initial price tag for the Gripens was R12 billion but Dramat conceded under questioning by SCOPA that the value of the BAE deal is R22 billion.

Johan du Plooy, a former Scorpion, is the only member of the Hawks currently assigned to the investigation of the arms deals. As the stakes are so high, this is evidence of a lack of will to bring to bear the necessary skills and capacity to get to the bottom of the allegations of corruption about which three books have been written. It is clear that Dramat is not well briefed in the matter as he told SCOPA that bribes of R480 million are in evidence, whereas a cursory perusal of the documents placed before the Gauteng North High Court by the Scorpions reveal that the total amount of bribes paid by BAe is £115 million. In the UK House of Commons Patricia Hewit, former Secretary for Trade and Industry, has confirmed that what she called “reasonable commissions” were paid by BAe. This is polite code for the bribes paid by BAe in a total of £115 million as set out, chapter and verse, in the papers produced to court by the Scorpions.

What has been missed in the current discussion is that sufficient prima face evidence already exists to justify giving consideration to the cancellation of the BAe deal by the South African government, both in terms of the carefully drafted escape clause in the contract and under our common law.

It is easier by far to establish on a balance of probabilities in a civil claim for cancellation and damages (if any) that the contract should be cancelled than it would be to prove corruption “beyond a reasonable doubt” in the context of the criminal prosecutions brought when the Hawks investigation is complete.

South Africa, in these times of belt-tightening, does not need to have massive liabilities in respect of unwanted and unnecessary arms when it is feasible to cancel arms acquisition contracts and to use the money so saved for uplifting of the poor and reduction of the national deficit.

Until the issues around the arms deals are properly and proactively addressed, it will not be possible to contend with any conviction that the Zuma administration is serious about its supposed fight against corruption. The original of much of the current corruption in South Africa is the arms deals. The cancer in society will not be arrested until this is addressed comprehensively and accountably.

Shortly after the Scorpions carried out their raids to search for and successfully seize the mass of documents they found, three leading South Africans called on then President Motlanthe to appoint a judicial commission of enquiry into the arms deals. The call by Archbishop Tutu, F W de Klerk and Helen Suzman (a more diverse yet united triumvirate is hard to imagine) was rejected with a curt reply: – kindly leave it to the police to investigate.

We now know, following Dramat’s appearance before SCOPA, that only one ex-Scorpion who is a forensic investigator rather than a policeman, has been assigned to the investigations of the arms deals despite the enormous amount of documentary evidence available. This is hardly an encouraging sign that any serious investigation is under way. It is also no excuse to suggest that the British will not co-operate as that co-operation has already been given by the UK Serious Fraud Office to the Scorpions in connection with the raids that followed upon the discovery of the paper trail that discloses the £115 million of bribes.

It is high time to reconsider the appointment of a judicial commission of enquiry so as to get to the bottom of the allegations of corruption which continue to swirl around the arms deals. It will be cheaper than the projected costs of the criminal investigation and could save the country R43 billion plus, if the deals can validly be cancelled as a consequence of the corruption that accompanied them. This is worth the effort involved in convening an enquiry and has the potential to eliminate the deficit on the balance of payments on South Africa’s current account. Perhaps the time for the president to do the right thing and appoint a commission of enquiry has at last arrived. One thing is certain – the Hawks have neither the sapiential authority nor the stomach for the investigation.

Paul Hoffman
13th September, 2010