Its official; beneath its striking logo, the motto of the Arms Procurement Commission is writ large: “Transparency, Accountability and the Rule of Law”. A laudable collection of values to guide the Commission through the troubled waters it has to traverse in order to get to the truth of what occurred when the new South African government decided, back in the nineties, to buy weapons we don’t need, with money we don’t have, to defend us against enemies we can’t strategically identify.
The fealty of the Commission to these values has been sorely tested by the reasons given for the resignation of one of its investigators, Attorney Norman Moabi, a former acting judge. On 7 January 2013 he signed a two and a half page letter explaining his decision. Briefly put: he complains of obsessive control of the flow of information by the Commission Chairperson, Judge Willie Seriti, a clandestine modus operandi within the commission (which he details), exclusion of input that does not advance what he calls a “second agenda” aimed at discrediting those who complain of impropriety in the arms deals, deliberate distraction of staff, total control of the Secretariat and Communications Departments, and nepotism. He quotes Seriti as making remarks expressing a desire to muzzle complainants and ascribing to him a view that “there is no substance in what they have said”. In short, Moabi apprehends a continuation of the cover-up that has for so long bedevilled investigations into the arms deal.
A week after the resignation letter was leaked, Judge Seriti has produced a remarkable five page response, purportedly buttressed by a four page memorandum authored by ten evidence leaders in his Commission. Both are aimed at discrediting the points of criticism raised by Moabi. Seriti tries to characterise Moabi’s complaints as a matter of “perception”. Actually, Moabi says he perceives two agendas in place within the Commission, the official agenda and the real “second agenda”. The latter he ascribes to a list of his experiences and his opinions based on them. The memorandum of the ten evidence leaders does no more than to confirm that the official agenda is indeed still in place. It does not attempt to traverse the allegations made by Moabi directly. The clear implication is however that the official agenda is the only agenda. The reason for resorting to this tenfold bolstering of the credibility of Seriti can be gleaned from an analysis of Seriti’s own reply to the letter of resignation that he was clearly content to file away opaquely rather than deal with transparently and accountably, had it not been made public.
Seriti’s press statement acknowledges the need to “respond in full as I hereby do”. The problem is he doesn’t. The allegations of nepotism in the administrative wing of the Commission are not dealt with at all; nor are the charges of “total control of the ‘Secretariat’ and ‘Communications’ Departments”. Seriti also does not traverse the charge that professional staffers are deliberately distracted from the task at hand, except perhaps by implication. Instead, his five pages of blather suggest that Moabi has an unspecified grudge against him as his sole motivation for resigning. Most disquieting of all is the “I can’t recall making such utterances” in reply to the accusations that contain the sting of the charge that there is a “second agenda”, followed by a rambling justification for having uttered them. The first of these suggests a desire to muzzle those who complain of corruption in the conclusion of the arms deals, the second suggests, quite wrongly, that there is no substance in the allegations of malfeasance made by “the Terry Crawford-Brownes of this world”.
Moabi says that Seriti did so utter. Seriti can’t remember, but nevertheless feels the need to justify and explain the sentiments attributed to him in quotes set out in the Moabi resignation letter. In these circumstances it is fair to conclude that Seriti did in fact say what Moabi complains he said. If, as he says, Seriti has not, more than a year after his appointment, twigged that there is indeed substance in the allegations of wrongdoing in the arms deals, then he hasn’t been paying attention to the task at hand, the content of seven books published on the topic and the court records at his disposal. This is worrisome. Seriti attempts to justify his irritation with Crawford-Browne on the basis that the latter has “inundated” the Commission with emails questioning its conduct and has “run a number of press articles along similar vein.” This won’t do. Crawford-Browne’s pertinacious efforts have brought about the appointment of the Commission, if anyone is entitled to take an interest in its progress, or apparent lack of progress, he certainly is. In fact, Crawford-Browne has written to the Commission fewer than 10 times in 2012, hardly a tsunami.
The Commission has a duty to act fairly at all times. This self-evident principle was confirmed by the Constitutional Court in the litigation concerning the appointment of an inquiry into the affairs of the SA Rugby Football Union back in the nineties. As a senior judge Seriti is entitled to the benefit of the presumption that all judges act with integrity. In any attempt to displace him from the Commission, the onus will be on the applicant for his recusal to show, on a balance of probabilities, that there is a reasonable apprehension (not suspicion) of bias on his part.
The press release issued on 22 January 2013 by Seriti does more to assist such an applicant than it does to support Seriti. If there is no nepotism, why not say so? If the Secretariat and Communications department are independently run, demonstrate this. If the letter of resignation arrived on 7 January, why was it not transparently and accountably dealt with before it came into the public domain? Why resort to specious reasoning based on the obvious fact that official documentation bears no trace of the secret agenda? It wouldn’t, would it? Even the official opposition has tumbled to this. Why are the other two commissioners so silent?
It appears that more questions are raised than are answered by what Seriti has chosen to include in and omit from his press release. The investigative journalists of the land, and other parties interested in seeing that justice is done in connection with the arms deals, are going to have a field day picking over the information that is now in the public domain as a consequence of the leaking of the letter of resignation penned by the courageous Moabi. They should concentrate attention on finding out why Seriti selects as his head of legal research Adv Fanyana Mdumbe, an employee of the justice department. Then ascertain whether the head of administration is actually a relative of Seriti’s. Other possibly dodgy appointments can also be investigated. Also investigate why an inexperienced deployed cadre from the Department of Justice, whose current minister was in the cabinet that gave the collectively responsible nod to the arms deals and is still an ANC leader, can ever be a suitable candidate for the job Seriti has given him. It would also be instructive to ascertain why the suggestions of the Institute for Accountability, made in November 2010, have apparently been ignored. Chasing wild geese at taxpayers’ expense is not the Commission’s mandate. Laboriously investigating admitted corruption is unnecessary.
The upside of getting it right with the Commission is that South Africa will be relieved of a R70 billion debt via the cancellation of the arms deals. A power of good can be achieved by creating jobs that address poverty and inequality with a windfall of funds on that scale. The downside of getting it wrong with the Commission is that the rule of law, accountability and transparency, all values foundational to our new order, will all take a hit below the waterline.
Seriti still owes the public a proper explanation, his press statement, properly construed, is underwhelming and unhelpful. It does not measure up to the Commission’s motto. Fudging issues is not accountable conduct.
Paul Hoffman SC
24 January 2013