The late Mr Justice Arthur Chaskalson, then President of the Constitutional Court, later Chief Justice of South Africa, in a paper delivered at the Annual General Meeting of the Law Society of Transvaal on Friday 28 October 1994 in Pretoria said:

“We need to remember that the first incursion into rights is often the most damaging; that once inroads are permitted, the will to resist subsequent incursions is lessened, and the ability to regain what has been lost is often extremely difficult”.

Just a few years later, after the “first incursion” had been made, Idasa described the arms deals scandal as “the litmus test of South Africa’s commitment to democracy and good governance.” In the run up to the long awaited first sittings of the Arms Procurement Commission (APC) the observations quoted above come into sharp focus as the fear of failing the “litmus test” grips the hearts of those who value freedom. Cynical observers claim that the APC is not supposed to uncover the truth, given the levels of corruption in high places. They are effectively conceding that “what has been lost” cannot be regained. But it does not have to be so.

The APC has been rocked by the resignation of one of its senior investigators and the public might now reasonably be apprehensive that Judge Willie Seriti might be biased against those who have complained about the corruption in the arms deals. The judge could do a lot to restore confidence in the APC by answering the as yet unanswered questions which the resignation and his responses to it have raised. He has not responded positively to an invitation to do so last week. In the hope that he can be persuaded to reconsider his stance, here are some of the important questions that would have been raised had the opportunity to do so face to face been allowed:

1. Do you have any relatives, whether by blood or by marriage, on the staff and payroll of the APC? If so, is this compliant with the values and principles of section 195 of the Constitution?
2. Have you read the record in the case between Terry Crawford-Browne and the President which led to the appointment of the APC, the seven books written on the subject of wrongdoing in the arms deals and the Debevoise & Plimpton report on corruption at Ferro-staal? If so, why do you admit that you may have said there is “no substance” in the complaints of wrongdoing when these sources are replete with solid evidence of wrongdoing? If you have not so read, why not?
3. Did you sign the warrant authorising the making of what are now known as the “spy tapes” that led to the 783 charges of corruption against the President being dropped? If so, was it proper for you to accept appointment to the APC given the findings you had to make to authorize the warrant?
4. Is the Head of Research at the APC, Advocate Fanyana Mdumbe, a loyal cadre of the ANC and a senior member of the staff of the Department of Justice? If so (and in either event) is it not an intractable conflict of interest situation that you have placed him in at the APC given that his Minister was in the cabinet that allowed the conclusion of the arms deals and is therefore collectively responsible?
5. Why have you elected to call “complainant” witnesses first, given the bad experience of the 1990 Harms Commission which did this?
6. Is it the intention of the APC to take the evidence of the cabinet ministers and civil servants who actually negotiated the arms deals, those identified as taking bribes, those who acted as unauthorised middlemen, the arms manufacturers’ representatives and the foreign politicians whose lobbying lubricated the arms deals?
7. Why did you decline to summons Tony Blair when he was in the country?
8. Given the decision in Sparks v The State, do you think that it is legally permissible to deal with witnesses in a way that “they will not again make noises in the public media?” If not, why did you say (or may you have said) this, and what exactly did you mean by it?
9. What motivated you to exaggerate the “inundation” of the APC with correspondence from Terry Crawford-Browne when he quite legitimately sent only 8 emails in 2012?
10. Are the APC evidence leaders kept in separate “silos” by you and Mdumbe? If so, why?
11. For what reasons were advocates Soni SC and Mdladla SC dismissed by the APC?
12. Please deal fully and accountably on a point by point basis with all of the allegations made by Attorney Moabi in his resignation letter and the follow up correspondence so as to restore public confidence in your probity and suitability to chair the APC.
13. What is your response to the editorials of various newspapers, already drawn to your attention, on the impact of the resignation of Moabi on your credibility and how do you react to the opinion pieces published under the names of Judith February, Moshoeshoe Monare, Ivor Powell, Allister Sparks and twice by Paul Hoffman SC? Feel free to deal with the points raised by those who have commented online on each of the editorials and the opinion pieces listed.

A properly conducted APC presents the nation with the opportunity to rid itself of a debilitating millstone. So much energy has been expended on covering up the wrongdoing in the arms deals that there is very little capacity left for more worthy pursuits aimed at addressing the challenges of poverty, inequality, joblessness as well as the lack of proper education, healthcare and housing for the 12 million fellow citizens who go hungry every day in South Africa. It may be too late to incarcerate the wrongdoers in the arms deals because it is too difficult to mount a fair trial at this stage, but it is not too late to cancel the deals, return the virtually useless armaments to the manufacturers who sold them and recover the prices paid as well as damages which may have been sustained.

An injection of R70 billion into the public purse is not to be sneezed at in these times of financial crisis. A lot of good can be done if the monies recovered are sensibly applied to addressing the challenges listed above. It is not legally necessary to go after the bribe takers to achieve this result as the bribes were paid by the arms manufacturers, who are few in number and still well heeled. They have no legal leg to stand on if they try to recover the bribes they paid because a good cause of action cannot be founded in a moral swamp. As Lord Denning famously put it: “Fraud unravels everything.”

In all these circumstances it is to be hoped that Judge Seriti will be able to see his way clear to giving a full and public response to the questions posed above. He has the opportunity to allay the reasonable apprehensions that his handling of the resignation of Moabi have created. If he does not want to do so, he knows what the right thing to do is and he should do it without delay.

Paul Hoffman SC
4 February 2013.