The Seriti commission may be about to kick off its second attempt at hearing evidence, having aborted a long-awaited hearing scheduled for March this year. The abandoned hearing would have seen a parade of whistle blowers telling their stories and explaining the content of books that they have written on the subject of misfeasance and malfeasance in the arms deals concluded at the end of the previous century. Whether the sudden resignation of one of the commissioners stalls the kick off again remains to be seen.

Now, so the affable communications officer of the Arms Procurement Commission, William Baloyi, tells us, the whistle blowers will no longer be needed. Instead, the commissioners have reconsidered their strategy and will now concentrate on the rationale for the arms deals in the first “scene setting” hearing (the rationale is one of their terms of reference) and only get on to the juicy corruption material at a later stage, if a later stage ever comes. The life of the commission is two years ending November 2013, so it is plain that an extension, which has been applied for, may have to be granted by the President, a matter that lies in his discretion, objectively exercised. He may well have reservations, given that a new parliament will have to vote on a budget for the extension of the life of the commission for a year.

Initially the attitude of the presidency, over the years spanning Mbeki, Motlanthe and Zuma, was, to put it simply: if you have evidence of wrongdoing in the arms deals, please refer the matter to the police for investigation. This was a reasonable response while the Scorpions, a unit in the National Prosecuting Authority (NPA), were still in existence. But after the dissolution of the Scorpions and their replacement with the SAPS Hawks, the reasonableness of the response diminished to such an extent that President Zuma himself decided, after prompting through “lawfare” that it would be preferable to have a commission of inquiry than to continue to box on with indefatigable campaigner, Terry Crawford-Browne. The Hawks closed their dockets shortly before the application to compel the appointment of the commission was launched by him, citing lack of resources as a somewhat threadbare excuse. Crawford-Browne used “lawfare” to get his long running dispute over the rationale for, constitutionality of and corruption in the arms deals ventilated properly.

The decision by President Zuma to stop resisting and to appoint the commission Crawford-Browne and many others had been calling for over the years was greeted with cynicism by some. It was seen as a stratagem to avoid replying to the many and varied serious allegations of wrong doing which Crawford-Browne was able to place before the court. Others suggested that the notion of controlling the process was attractive to the President, whose name has regularly surfaced as a bribe recipient and whose former personal financial advisor, Schabir Shaik, was sentenced to fifteen years in prison for corrupting Zuma in relation to, inter alia, the provision of what is best described as “protection money” for French arms company Thint.

The cynics were all in “I told you so” mode when Norman Moabi resigned from the staff of the commission in January saying that its chair has a second agenda aimed at rubbishing the version of the whistle blowers and forever silencing their criticisms of the deals. He revealed a raft of allegations of maladministration and questionable conduct in the affairs of the commission. The Institute for Accountability still awaits a substantive reply to no fewer than 13 questions it posed to the chair of the commission, Mr Justice Willie Seriti. The questions all relate to the probity and integrity of the commission and the fact that they remain unanswered is lamentable. This also creates an atmosphere of mistrust in relation to the workings of the commission. The resignations of Mr Justice Frans Legodi as commissioner, and earlier Kate Painting as researcher, do nothing to improve this. It will be of interest to see whether more defections follow and who will be appointed to replace those who do resign. Talk of Mr Justice Willem van der Merwe coming back after initially declining “for personal reasons” is whispered in the corridors of the Courts and at the Bar. Perhaps a fully retired judge will be approached or no replacement will be made.

There are open questions as to whether an elaborate charade is being played out in the machinations and changes of direction that the commission has carried out in the course of the year, after getting off to a lethargic start last year.

If a dutiful and concentrated effort is made to analyse the rationale for the arms deals it is possible that the commission could surprise the cynics and rescue its reputation. The arms deals are all just public procurement projects. It is easy to establish without too much fuss that the requirements of the law that the arms deals be fair, equitable, transparent, cost-effective and competitive were not met. South Africa did not need the arms. The well-documented “visionary approach” of Joe Modise, then Minister of Defence, to ignore price in weighing the BAE/Saab bid which accounts for half the money spent, is patently obviously unconstitutional. The notion that the offsets – promises of great job creation and wealth generation – were an economic rationale for the deals has been disproved to the satisfaction of the Department of Trade and Industry. The majority of the offsets did not materialise, many that did have been abandoned and most of the jobs promised were not created.

It is accordingly possible, despite all the cynical observations, for the commission to redeem itself on the rationale aspect by swiftly bringing out an interim report in which it is recommended that the deals be invalidated for want of compliance with the procurement requirements of section 217 of the Constitution. This invalidity would entail the return of the arms, or what remains of them, against repayment of all amounts paid on account to the arms dealers. And these amounts would include any possible bribes paid in the process. The needy fiscus would get all moneys expended back and the arms dealers would be left with their arms and their claims against middlemen that are not enforceable in law. Perhaps this is just punishment for exporting so much malfeasance to South Africa.

It is surely by now clear that the defence rationale of the arms deals just does not fly any more frequently than the twelve Gripen fighters which are still in their packing cases. SA has no enemies likely to attack it and no prospective enemies either.

The commission does not need to make any bribery finding at this stage. It can look at the rationale given, compare that to the clear requirements of the law and tell the President that the deals are all invalid for want of compliance with the tender requirements of the law. A happy ending for our national solvency is still possible; the commission has the chance to prove its critics wrong by ending the cover-up on the rationale side and close an unfortunate chapter of our history.

Paul Hoffman SC
director of the Institute for Accountability
was lead counsel for Crawford-Browne in the litigation that gave birth to the commission.
30 July 2013.