The showdown has been a long time coming. Fifteen years. Fifteen years in which piles of files and documents have been gathered and secured, millions spent on legal and other costs, to say nothing of the immense emotional, intellectual and physical effort it has taken for indefatigable activist Terry Crawford-Browne to get this far – finally being able to cross-examine Trevor Manuel, who, as former minster of finance, signed off on the notorious and controversial R70 billion Arms Deal in 1999.
Last week the veteran campaigner packed his bags and flew out of wintry Cape Town to Pretoria where he was due to cross-examine Manuel at the Arms Procurement Commission. He didn’t expect to get far, but it was worth a good shot. Inside his briefcase Crawford-Browne carried a 16-page document with 84 detailed questions he was hoping to put to Manuel.
That the Seriti Commission, as it has become known, exists at all is thanks to Crawford-Browne, who approached the Constitutional Court to compel government to appoint an independent commission of inquiry into the arms deal, riddled from the start with allegations of gross corruption, bribery and kickbacks involving shady international arms dealers ready to reap easy pickings in newly-democratic South Africa.
Pressured by Crawford-Browne’s impending court action, President Zuma announced the formation of the Seriti Commission in 2011. It has since been plagued by resignations, controversy and accusations that it has a “second or secret agenda” and that the entire commission is merely a window-dressing exercise.
There is no love lost between Manuel and Crawford-Browne, who have faced each other in court several times over the years, including in 2002, when Crawford-Browne attempted to overturn Manuel’s approval of crippling arms deal loan agreements. In that case, the court found in Manuel’s favour, and it was afterwards that he famously described Crawford-Browne as “the gorilla on my back”.
In 2008 Manuel lodged an urgent application to prevent Crawford-Browne from making “defamatory” statements about him – effectively gagging him – in relation to the arms deal. That same year, the FBI arrested arms company BAE’s chief executive officer Mike Turner, a deputy chairman of Barclays Bank and others in relation to bribes BAE had paid to secure Saudi Arabian and South African contracts.
“The reality is that a gagging order against me will serve no purpose in protecting Manuel’s reputation since international investigators are now uncovering BAE’s bribery network,” Crawford-Browne said at the time.
Over the years Manuel has also wanted Crawford-Browne to be declared a “vexatious litigant” so one can imagine the underlying currents before Crawford-Browne’s scheduled cross-examination of Manuel last week on Thursday. One newspaper reporting on the face-off described the encounter as “Grumpy old men clash over arms deal ‘corruption’”.
Testifying at the commission earlier in the week, Manuel had invoked former president Nelson Mandela, saying that the country’s first democratic president had mandated his Cabinet to “properly equip the defence force”.
“I believe that the selected package was affordable and within government’s fiscal envelope. It is important that as finance minister I was part of a collective,” Manuel said, adding that he had not been “party to deciding on the selection of the equipment. Treasury doesn’t decide on pharmaceuticals to be dispensed at clinics, neither do we decide the curriculum content in education.”
Manuel also denied during cross-examination by Anna-Marie de Vos for Lawyers for Human Rights, that he had told former ANC MP, Andrew Feinstein (author of After the Party: Corruption, the ANC and South Africa’s Uncertain Future) that “We all know JM [former defence minister Joe Modise]… It is possible there was some shit in the deal. If there was, no one will ever uncover it, just let it lie.”
Said Manuel: “Mr Feinstein told this commission that he didn’t record this discussion. It is his word against mine. Did he confirm to Ms de Vos that JM was Julius Malema or Jabu Moleketi? We could have been talking about anybody we knew. I did not say those words, and I am under oath.”
On Thursday Crawford-Browne only managed to get through six of his 84 detailed questions before Manuel’s legal team objected to them as “scandalous and scurrilous”. Judge Seriti too warned Crawford-Browne that his questions were drifting into territory that had already been judged in litigation against Manuel.
“It’s exactly the same issue that he re-conjures time after time…this matter is well and truly, like the dodo, now extinct,” Manuel reportedly said, to which Crawford-Browne responded, “Sir, unlike the dodo, the arms deal is not extinct.”
Judge Seriti eventually ruled that Crawford Browne should discontinue his line of questioning.
Responding later to having been shut down by Judge Seriti, Crawford-Browne said that Manuel, in his written submission and verbal testimony, “ha[d] inadvertently shot himself in both feet in describing the case I brought against him as res judicata – or dead and buried. (Case 9987/2001 in the Cape High Court).”
“I now suggest that ASAP we should resurrect Case 9987/2001 in the Cape High Court in the public interest on the basis of fraud, compounded by perjury and abuse of the powers of public office in deliberate obstruction of justice, and to demand that the judgment against me be set aside. As Paul [Hoffman] confirmed, there is no res judicata or statute of limitations when it comes to fraud. In addition to the original president, Minister of Finance etc. as defendants, I suggest we now add Trevor Manuel and Maria Ramos as defendants in their personal capacities and that we seek damages from them, jointly, of R100 million. Per section 92, Cabinet ministers are accountable both collectively and individually, hence that we seek damages from them personally to establish the precedent – given that no one, including Zuma, is held accountable for Nkandla, etc.,” Crawford-Browne told the Daily Maverick.
He suggested that the proposed damages of R100 million be allocated in the public interest with R45 million going to “St George’s Cathedral for replacement of the roof, other repairs and ongoing maintenance, and in recognition of the ‘Peoples Cathedral’ and its unique contribution in the struggle against Apartheid”; R45 million to the Church of the Good Shepherd on Robben Island (a chapelry of the Cathedral) in conjunction with the adjacent youth centre (in the renovated old criminal jail) to develop the IFAISA (Institute For Accountability In South Africa) academy of secondary and tertiary education programmes in accountability studies, in an ethos of justice and peace, as an institute of the University of Cape Town; a lump-sum payment of R5 million to Terry Crawford-Browne as a tangible public apology from Manuel and Ramos for fraud, perjury and abuse of the powers of public office to obstruct the course of justice; and a lump-sum payment of R5 million to Paul Hoffman in reimbursement of his pro-bono work to expose the culture of corruption unleashed by the arms deal.
According to Crawford-Browne and Hoffman, Res judicata – did not apply in matters of fraud or perjury or obstructing the course of justice. In other words the previous court ruling that Cabinet and not Manuel was responsible for the arms deal could be challenged and that the arms deal itself could not stand independently of the financing for which Manuel was responsible.
“We are considering how to proceed in the public interest with a claim for very substantial damages,” said Crawford-Browne.
Phase one of the hearings were meant to wrap up this month after President Thabo Mbeki was scheduled to testify, but his appearance has been postponed until a later date owing to the death of his mother Epainette.
Crawford-Browne has also been preparing to cross-examine Mbeki, but after his experience last week he will confine himself to two questions only.
The crucial second phase of the commission will look at allegations of criminality linked to the arms deal, but Crawford-Browne as well as other activists, including Feinstein and author Hennie van Vuuren, have not been given access to vital documents that have still not been processed by the commission and this will hamper matters.
In a letter to Judges Seriti and Musi last week, after he had been admonished for making reference to and producing BAE and GFC (German Frigate Consortium) supply agreements that Seriti claimed he had not yet seen and that the DTI had objected were still classified, Crawford-Browne noted that “the reality is these issues have already been the subject of litigations by affected parties in court, and the documents have for many years been in the public domain. You say that you have never before seen these documents. I suggest, however, that it is truly bizarre that the Commission has not long ago been furnished these foundational documents by the Department of Defence. And, secondly, that it is claimed that the documents are classified.”
He continued that it was “extraordinary that I must evidently ask what other documents are being withheld from the Commission that I, as a member of the public, already have legal possession? The Commission was established precisely because President Jacob Zuma’s legal counsel was unable or unwilling to rebut the huge volumes of evidence transferred from the ‘Scorpions’ to the ‘Hawks’, and contained in CAS 914/11/09, CAS 915/11/09 and CAS 916/11/09 in respect of the German Frigate Consortium, German Submarine Consortium and BAE.”
Evidence regarding BAE is, alone, said to comprise 460 boxes and 4.7 million computer pages holding significant information regarding investigations into the arms deal in the UK, Sweden, Switzerland and Germany, and was reportedly left in two shipping containers parked in the Hawks’ premises in Pretoria. The commission has not yet processed all of these documents.
In the end, says Crawford-Browne, the benchmark to be tested by the Commission is whether the country received the R11o billion in offsets for the arms deal – and if not, why not?
He is hoping that should the deal be found fraudulent, President Zuma should cancel the contracts and loan agreements and recover the cost from the European governments and the export and credit agencies that guaranteed and underwrote the transactions.
In the meantime, Crawford-Browne has aimed his sights on Manuel, who might soon, even though he now describes himself as a pensioner, feel the weight of the gorilla once again. DM
Photo: Terry Crawford-Browne/Trevor Manuel
Support DAILY MAVERICK & get FREE UBER vouchers every month
An increasingly rare commodity, quality independent journalism costs money, though not nearly as much as its absence can cost global community. No country can live and prosper without truth - that's why it matters.
Every Daily Maverick article and every Scorpio exposé is proof of our dedication to this unshakeable mission. Investing in our news media is by far the most effective investment into South Africa's future.
You can support Independent and Investigative journalism by joining Maverick Insider. If you contribute R150 or more per month you will receive R100 back in UBER vouchers. EVERY MONTH until October 2019.
So, if you'd like to help and do something meaningful for yourself and your country, then sign up to become a Maverick Insider. Together we can Defend Truth.
The Hindenburg had a smoking room.