The findings of the commission of inquiry into the Arms Deal should be set aside due to its failure to investigate allegations of fraud and corruption, the North Gauteng High Court heard on Tuesday 11 June 2019.
Non-government organisations Corruption Watch and Right2Know argued in front of a full bench of the court that the commission, led by Judge Willie Seriti, had failed to fulfil its basic legal obligation of searching for the truth about the multibillion-rand strategic defence procurement package, finalised in 1999.
Multiple investigations, both locally and abroad, have provided evidence of corruption in the Arms Deal, but the commission, reluctantly established by former president Jacob Zuma, in its final report dismissed such claims as “wild allegations with no factual basis” and “baseless hearsay”.
Representing the NGOs, advocate Geoff Budlender SC on Tuesday explained how the commission failed to use available evidence, quiz key witnesses and investigate issues already in the public domain, apparently choosing at almost every opportunity to turn a blind eye to the most serious allegations of corruption.
Corruption Watch and Right2Know applied to review the Seriti Commission’s findings months after its report was released in 2016, but after repeated requests and even heading to court, the NGOs received only a limited record of the inquiry’s work in 2018.
“The commission did not investigate properly,” said Budlender, listing specific areas where the inquiry failed to properly do its work.
He said of the 4.7 million pages various authorities had collected in evidence related to the Arms Deal over the years, only 1.3 million were scanned and used in the inquiry. The inquiry had access to shipping containers of evidence it never assessed.
“The commission thus knowingly turned a blind eye to 2.6 million documents in its possession, which had been collected by the authorities in the course of an investigation into this very matter,” said the NGOs in their court papers.
Budlender said commissions of inquiry have a similar role to the Office of the Public Protector and their findings should be set aside if they don’t fulfil their mandate. Recommendations from inquiries, however, are not binding like those from the Public Protector, but Budlender argued that irrational findings should not be allowed to stand and be used as a defence by implicated persons.
In his attempt to avoid criminal charges related to the Arms Deal, Zuma has argued that multiple investigations have been conducted and none have come up with conclusive evidence that he was involved in corruption.
Corruption Watch and Right2Know, however, said the Seriti Inquiry erred by ignoring evidence gathered in cases against Zuma and his former financial adviser Schabir Shaik. Shaik was sentenced to 15 years in prison for facilitating bribes for Zuma to protect French arms company Thales.
The Seriti Inquiry report mentioned Shaik once and didn’t mention Zuma at all. The commission did not even get the full record of the cases against Shaik, Zuma or Tony Yengeni, who was sentenced to prison for accepting a discount on a vehicle in an agreement related to the Arms Deal.
Budlender argued that the commission failed to follow up on damning allegations of corruption, such as claims that Chippy Shaik tried to solicit a bribe from Bell Helicopters and gave witnesses such as Shaik a ridiculously easy ride when he testified.
In their court papers, the NGOs said attempts to get information from Bell Helicopters was “half-hearted and dilatory”.
Budlender said of Shaik’s appearance at the commission: “His reply was a blatant denial and the Judge said, ‘Thank you,’ and no further questions were asked to him.”
Shaik was just one witness who the commission failed to ask critical questions. Others were simply never called to testify.
The NGOs argued that the commission failed to get information on the Arms Deal from authorities in Germany, Switzerland, Liberia, Sweden, the West Indies and the United Kingdom. It failed to investigate claims from or related to individuals such as Julekha Mahomed, Seth Phalatse or Sipho Zokde.
It largely ignored the report from Debevoise & Plimpton that made serious allegations about a consortium of bidders to provide submarines as well as draft reports from the Auditor-General suggesting serious irregularities.
The Presidency under Zuma initially opposed the application to set aside the Seriti Inquiry’s findings, but after President Cyril Ramaphosa was appointed it decided not to oppose the case. Advocate Nazeer Cassim SC admitted allegations had not been pursued and noted that the NPA can still prosecute those allegedly involved in Arms Deal corruption despite the inquiry exonerating them.
Judgment was reserved on Tuesday, but because The Presidency did not oppose the application, Corruption Watch and Right2Know stand a strong chance of winning the case. The win will largely be symbolic, but it will confirm what many critics have long argued — that the Seriti Inquiry was a whitewash and allegations of corruption remain largely untested. DM