Congratulations on your appointment as chief evidence leader in the Seriti Commission of Inquiry into wrongdoing in the procurement of armaments for the new South Africa. This is indubitably the brief of your life and a golden opportunity to assist the Commission with its task of exacting accountability in respect of all matters covered by the broad mandate which the President has given it.
In your capacity as the senior evidence leader, you will be in a position to help and guide the Commissioners in their search for the truth behind the allegations which have bedevilled the arms deals virtually since the day when they were concluded. It is self-evident that the approach which you adopt in discharging your obligations towards the public, the Commission and the President, should be open, transparent and accountable.
At this stage, you are probably wondering where to start on an inter-continental journey which is likely to take you the full two years which the President has allowed and which will undoubtedly involve you in the perusal of numerous documents and the taking of many statements. There is already a great deal of information in the public domain which you and your team are going to have to sift for the Commission in a manner which is relevant and digestible to the Commissioners, as well as being conducive to the discharge of their mandate. Five books which touch upon, or are devoted to, the subject of the arms deals have already been published. There are doubtless more to come. The books already published, in order of their publication, are:
‘Eye on the Money’, by Terry Crawford-Browne;
‘After the Party’ by Andrew Feinstein (Now in its second edition);
‘The Arms Deal in Your Pocket’, by Paul Holden (which has a most useful timeline as its Appendix B);
‘The Devil in the Detail’, by Paul Holden and Hennie van Vuuren;
‘The Shadow World – Inside the Global Arms Trade’, by Andrew Feinstein.
It would seem that all of these books are required reading for the Commission and that the authors may be used as witnesses in respect of the specific issues which are covered by the terms of reference of the Commission. All of the authors have indicated their willingness to participate in the activities of the Commission and their knowledge of the facts and acquired expertise in relation to the issues which the Commission will be investigating, could prove to be invaluable to you and your fellow evidence leaders.
There is also the record of the proceedings in the Constitutional Court in which Terry Crawford-Browne sought an order compelling the appointment of the Commission of Inquiry. His supplementary affidavit and that of Richard Young filed of record in that matter, are a veritable treasure trove of information that will be of interest to the Commission. Richard Young has already successfully litigated a damages claim against the government because his company was a victim of the wrongful manner in which the procurement process was conducted. There is also other litigation on record in the High Court which will be of interest to you. In particular, the last gasp effort of the Scorpions to bring wrongdoers in the BAE/SAAB deal to book contains details of the modus operandi used to launder bribes through the British Virgin Islands banking system, with interesting details of amounts and recipients all on record already. These few pages could render it unnecessary for the Commission to plough through the millions of pages of documents in the possession of the Hawks. There are three pending criminal investigations in the hands of the Hawks and the content of the dockets in those matters will be of considerable interest to the Commission. The court file relating to the freezing of some of the assets of Fana Hlongwana also makes instructive reading.
You will also have to take cognisance of the criminal investigations and various admissions made in the countries in which the arms manufacturers who did the arms deals, are resident. The Swedish authorities have a docket open against SAAB and there are some criminal investigations still pending in Germany. The details of these are known to Mr Crawford-Browne who visited Germany in March 2011 to consult with prosecutors there as part of the preparation of his own case. It seems that the Serious Frauds Office in the United Kingdom, while it no longer has open dockets, will be a source of much useful information.
One of the matters that will engage your attention at the outset is the order in which to tackle the work of the Commission. In this regard, you may wish to consider the ‘low hanging fruit’ that is available to you as a consequence of admissions made in relation to the aircraft and submarine deals. As long ago as 2003 an admission was made in the British House of Commons that the ‘commissions’ (for which read ‘bribes’) paid in the BAE/SAAB arms deal had been kept ‘within reasonable limits’ (sic) because £200 million had been set aside for this purpose and only £114 million was used. This, coupled with the recent admissions by SAAB, ought, at common law, to afford a basis for cancelling what was the biggest of the four arms deals. The British Virgin Islands banking records show a paper trail of the destination of the bribes admittedly paid by BAE/SAAB.
The other matter which may be solved easily is the submarine deal in which the new management of Ferrostaal has made public an attorney’s report reflecting details of the wrongdoing in the acquisition of submarines by South Africa. This has been done in an effort to prove to American authorities that Ferrostaal has turned over a new leaf and that is worthy of tendering for large US contracts.
If the first interim report of the Commission concentrates on the jet and submarine deals, it will be possible to reflect a great deal of constructive progress in a short time. This will have the effect of establishing public confidence in the work of the Commission and will enable the Executive to give its consideration to cancelling the jet and submarine deals. South Africa can reclaim all payments made, be excused from liability in respect of payments not yet due, against return of the jets and submarines to the suppliers. The beauty of cancelling is that bribes paid are recoverable from the bribers as they were paid out of the prices agreed.
The other deals will not be as easy to crack, but Bell Helicopters has publicly complained that it was asked for bribes in regard to the helicopter contract, while a careful interview with Barbara Masekela, our former ambassador to Paris, may reveal interesting information concerning the propriety of the warships deal.
It is also important that you keep an open line of communication with the public by way of regular press releases, the establishment of a Commission website and maybe even a facebook page. Possible whistleblowers should be given the opportunity of communicating with you anonymously and electronically via the website using internet cafés. In this way, identities can be protected and valuable information can be obtained with the minimum of effort on the part of your evidence leading team. The two years available to you to discharge your work suggests that you will have to keep the exhortation of section 237 of the Constitution uppermost in your mind by performing diligently and without delay. You have an awesome responsibility as evidence leader and deserve the co-operation and assistance of the public, those who investigated wrongdoing, both locally and overseas, and the apparatus of the State. Look up surviving Scorpions investigators and prosecutors, especially those who looked so forlorn when the 783 charges against the President were dropped. Good luck!
Paul Hoffman SC
14th November, 2011