The purpose of a presidentially appointed commission of inquiry is that it serves as an instrument of policy advice. An objective look at an issue troubling government by judges sworn to act without fear, favour or prejudice is a salutary way of gleaning unbiased guidance on thorny issues that may confront the government of the day from time to time.
The independence of judges and their professional commitment to uphold the rule of law and the Constitution lend an aura of respectability to judicial commissions of inquiry. A commission of inquiry on which three judges sit is usually regarded as completely beyond reproach, and rightly so: if our president cannot trust our judges to fulfil their functions with probity, integrity and accountability, who can he trust?
It is accordingly a matter of grave concern to note that a Pretoria attorney, Norman Moabi, who was appointed as a senior investigator to assist the Seriti Arms Procurement Commission, has resigned with immediate effect and has made his reasons for so doing a matter of public record. Moabi has impeccable credentials: he is a former acting judge (which implies that a judge president has confidence in him) and a law society member (which means that his colleagues look up to him as a leader).
Three judges preside in the Commission, Judge Willie Seriti is the chairperson and he is assisted by judges Musi and Legodi. The appointment of the Commission followed litigation in the Constitutional Court to compel the President to do so, on the basis of the allegations of impropriety which have swirled around the arms deals since their inception in a previous century. The president conceded the merits of the case without ever traversing or challenging the substance of the claims of malfeasance and misfeasance made in the papers placed before the Constitutional Court.
The source of concern is that Attorney Moabi alleges a “second agenda” in his letter of resignation. He accuses Judge Seriti of “total obsession with the control of the flow of information to and from the Commission”. Briefs to evidence leaders are clandestinely prepared by unknown persons “who dictate which evidence leaders will deal with which witnesses and why”. According to Moabi, queries are channelled through only one person and professional staff members are kept in the dark as to the content of briefs to evidence leaders. Instead staff is distracted with irrelevancies and excluded from giving input inconsistent with the “second agenda”. The Secretariat and the Communications department are kept on a tight rein with “no independent powers to decide on anything”. Moabi also raises the spectre of nepotism in relation to the administration of the Commission.
Two somewhat chilling quotes are furnished in the letter of resignation. The first amounts to a thinly veiled threat: “When we have dealt with the first witnesses, they will not again make noises in the public media”. In the context of the general thrust of the letter it appears that the quotes are attributable to Judge Seriti himself. The second is breath-taking for its ignorance of the factual matrix which the Commission has been examining for over a year: “When you look at the submissions made by Terry Crawford Browne… you realise that they are not factual but are based on hearsay. There is no substance in what they have said…”
In falling on his sword Attorney Moabi says that he cannot “pretend to be blind to what is going on… since I have satisfied myself that the Chairperson seems to have other ideas and a modus operandi to achieve…what is not the clear mandate of the enabling Government Gazette.”
These are serious allegations from an ostensibly credible source that are potentially capable of disqualifying Judge Seriti from continuing to serve on the Commission. He owes the public and the president who appointed him an accountable explanation for the proffered reasons that apparently elicited the resignation of a senior investigator. The bland denial issued by the Commission simply won’t do; only a detailed rebuttal of the chapter and verse set out by Moabi can possibly displace the reasonable inference that Judge Seriti is biased and thus not competent to properly discharge the mandate given him.
No fewer than seven books have been written on the subject of the corruption in the arms deals. All of them make detailed and pertinent allegations of malfeasance on the part of our political leaders, public servants and the commercial negotiators involved in the conclusion of the arms deals. Not one author has ever been sued for damages for defamation despite the prima facie defamatory nature of the content of the books.
The press has carried blatantly defamatory stories of the skulduggery in the arms deals. A prime example is the front page story in the Sunday Times in August 2008 in which the ANC was accused of accepting a bribe of R28million and President Zuma a bribe of R2million from Ferrostaal, the submarine contractor, all amounts channelled via then President Mbeki. None of these sued for defamation; on the contrary, Ferrostaal, now under new management, has subsequently admitted to corruption in its dealings with South Africa.
Similarly, the BAE/Saab consortium has been found wanting in the probity stakes. In the British House of Commons it was admitted that a tidy sum was set aside by BAE for “commissions” which is just a euphemism for bribes. Saab has admitted to paying bribes, blaming perfidious Albion for the wrong-doing.
None of the arms deals are compliant with the procurement requirements of the Constitution which contemplates a “system which is fair, equitable, transparent, competitive and cost effective.” The off-sets components of the deals are quite the opposite, as time has shown. Our own Department of Trade and Industry has conceded that most of the offsets have not materialised. Joe Modise’s “visionary approach” to buying aircraft simply jettisoned the notion of cost effectiveness, thereby rendering the acquisition of the jets invalid for want of compliance with the last procurement criterion set in the Constitution.
The remedy for all this is simple: the arms deals should be cancelled, the slightly used arms returned to their European manufacturers and all monies paid recovered. An incredible amount of good work can be done by building schools, buying books, training teachers, erecting houses, roads, hospitals and clinics with the R70 billion bonanza that the treasury will receive if the arms deals are indeed cancelled as they could and should be.
If Judge Seriti really has no stomach for laying the foundations for this in his Commission, he should resign and make way for another judge who has no alleged “second agenda”. If the allegations laid at his door so publicly by Attorney Moabi are false, a detailed refutation on a point by point basis is needed now. “No comment” or “office politics” or the bare denial issued vicariously won’t cut it, not after the Commission has done so little for so long to actually get on with discharging the mandate given to it. Already the terms of the letter of resignation create a most unfortunate but reasonable perception of bias on Judge Seriti’s part against those who complain about the turpitude in the arms deals.
Shortly after the Commission’s appointment the then chief evidence leader, Vas Soni SC, was given suggestions by the Institute for Accountability, aimed at enabling him to efficiently get on with the task at hand. Precious little progress is evident more than a year later. This, together with the substance of the brave Moabi’s resignation letter, raises questions that need to be dealt with appropriately by Judge Seriti himself without delay, failing which the president should intervene to protect the integrity of the process he has set in motion.
Paul Hoffman SC
17 January, 2013.