Arms deal inquiry ‘set up to fail’
Crucial evidence ignored, witnesses not interrogated
● An arms deal commission insider has told how the inquiry was doomed to fail when evidence leaders were denied access to crucial and classified military documents.
The source was one of 10 former evidence leaders at the Seriti commission of inquiry. He cannot be named because of confidentiality agreements staff had to sign. This week the source told the Sunday Times that he and many other staff thought the commission was “a charade” and that “this was an exercise to produce anything other than substantial findings”.
This comes as the government scrambles for a way forward after this week’s judgment by Gauteng judge president Dunstan Mlambo, judge president of the competition appeal court Dennis Davis and North West judge president Monica Leeuw set aside, with costs, the findings of the Seriti commission, which had found that there was no evidence of corruption in the arms deal.
A senior security cluster official said the judgment had caught them “on the back foot” and meetings have been planned for this week with the National Prosecuting Authority (NPA), Hawks and Special Investigating Unit (SIU) officials to decide what to do.
“It’s wonderful news, which hardly anyone expected. Meetings are being scheduled within the cluster. We now need to see if criminal investigations can be pursued,” the source said.
“We will look at how we get back the money, who we go after, and how. Plans are being laid, including whether we hold another commission of inquiry or go straight for criminal investigations and prosecutions.
“Top of the list is securing shipping containers of documentary evidence critical to any investigations.”
Several shipping containers, stored at the Hawks’ Pretoria head office, contain 7.2-million pages of evidence the former Scorpions had secured. Corruption Watch and Right2Know said in court papers that the commission scanned and secured only 1.3million of these.
One document Seriti refused to admit as evidence was an internal memo detailing an alleged bribe by German arms manufacturer ThyssenKrupp to Chippy Shaik, then head of defence force procurement.
Others Seriti allegedly suppressed, disallowed or refused to obtain included a US law firm report on bribery allegations against German arms manufacturer Ferrostaal; German police reports on money laundering and corruption allegedly involving ThyssenKrupp; and the US justice and state departments’ settlement agreements with British arms company BAE over corruption and bribery.
Former ANC MP and arms deal activist Andrew Feinstein said Seriti ruled that the ThyssenKrupp memo containing allegations against Shaik could only be admitted into evidence if either Shaik or ThyssenKrupp submitted it, “as he decided the document was stolen”.
The memo, which ThyssenKrupp executive C Hoenings wrote and signed, reads: “The last trip was suggested by C Shaikh [sic], Director Defence Secretariate. During one of our meetings he asked again for explicit confirmation that the verbal agreement made with him for the payment to be made in case of success, to him and a group represented by him, in the amount of 3 million US$.
“I confirmed this to him and offered to record this agreement in writing …”
The evidence leader said that in the beginning he thought Seriti was making honest mistakes, but “that changed”.
“The commission had so many deficiencies. Evidence leaders, legal researchers, and judges couldn’t handle it. People resigned because evidence was suppressed and witnesses were not interrogated. Witnesses like [adviser to then defence minister Joe Modise, Fana] Hlongwane and Shaik should have been cross-examined to death but were allowed to escape.
“That’s how the commission came to the finding of no evidence of corruption and that no-one could be held liable.”
The evidence leader said they were blocked from accessing classified documents and it became impossible for evidence leaders to do a proper job. “A commission is meant to interrogate and assess, to find the truth. That didn’t happen,” he said.
“The commission was definitely not transparent. It was either Seriti’s way or the highway. Seriti dictated the pace. That pace was to drag it out.”
Another arms inquiry figure who was delighted with this week’s judgment was Mpumalanga High Court judge president Francis Legodi. He resigned from the commission just before it began.
“This judgment will now allow people to read for themselves as to why I left,” he said.
But Seriti, now “happily retired”, stands by his findings.
“What we did and how we went about it is contained in the report. I cannot comment beyond the report,” he said.
“Two senior judges drew these findings. All witnesses were questioned in public, and we allowed for cross-examination, also done in public. Nothing was hidden,” he said.
“We wrote the report after going through thousands of documents and listening to evidence from numerous people. We wrote what we believed was the right thing.”
Shaik told the Sunday Times that this week’s judgment did not pertain to him or other witnesses, “but rather the conduct of the commission”, with which he co-operated. “I could not cross-examine myself. If other parties didn’t cross-examine me, how is it my fault? It is something the commission must be asked.”
Shaik said he presented evidence to the commission that showed the ThyssenKrupp bribery allegations were not true.
“In the commission I was asked about bribes and my answer was clear. I was not bribed.”
Hlongwane cut the call when the Sunday Times contacted him for comment. He also failed to respond to SMSes and WhatsApp messages.
Feinstein said after this week’s judgment that the NPA could now bring charges against those implicated in the arms deal.
Arms deal activist Terry CrawfordBrowne said Ramaphosa could still cancel tainted arms deal contracts by invoking the anti-bribery clauses these contained.
Presidency spokesperson Khusela Diko said Ramaphosa was studying the judgment.
SIU spokesperson Nazreen Pandor said the judgment would be studied to determine the next steps. NPA spokesperson Bulelwa Makeke said the agency could not immediately answer questions.