South Africa

R140 BILLION PROCUREMENT

Attempt by judges Seriti and Musi to appeal scrapping of Arms Deal findings thrown out by high court – with costs

Attempt by judges Seriti and Musi to appeal scrapping of Arms Deal findings thrown out by high court – with costs
Judge Hendrik Musi and Commission chair Judge Willie Seriti during the opening of the arms deal commission on August 5, 2013 in Pretoria, South Africa. (Photo by Gallo Images / Sowetan / Veli Nhlapo)

In August 2019 the North Gauteng high court set aside the findings of the Arms Deal commission. Two judges who were part of the commission wanted that ruling overturned — but a new court judgment says this won’t be happening.

An attempt to appeal a high court judgment setting aside the findings of the Seriti Commission of Inquiry into the controversial 1999 Arms Deal, officially known as the Strategic Defence Procurement Package and which cost more than R140-billion, has failed.

The high court in Pretoria ruled on Wednesday 31 August: “No basis has been laid for this Court to grant condonation of a filing of an application of leave to appeal which is more than two years late.

“Even if this Court was inclined to be excessively generous, there is no basis by which there are prospects of success nor is there a point of law upon which the disposition of this case rests and which requires the attention of a higher court.”

Dismissed with costs

The application to appeal, by judges Willie Seriti and Hendrik Musi, who were accused of failing to properly investigate the Arms Deal, was therefore dismissed with costs, including the costs of two counsel.

It remains to be seen whether they will take the matter to the Supreme Court of Appeal or the Constitutional Court.

In 2011 former president Jacob Zuma announced he would appoint a commission of inquiry into the Arms Deal.

Seriti was the chair of the commission, while Musi was a member.

The commission’s final report was publicly released in 2016.

In a speech at the time, Zuma touched on a few of the commission’s findings.

“On whether any contract concluded through the procurement process is tainted by any fraud or corruption,” he said, “the Commission states that the widespread allegations of bribery, corruption and fraud in the arms procurement process, especially in relation to the selection of the preferred bidders and costs, have found no support or corroboration in the evidence, oral or documentary, placed before the Commission.”

Despite what Zuma said, the commission’s findings were widely viewed as an effective cover-up.

Corruption Watch and Right2Know subsequently initiated legal proceedings to review the commission’s findings.

Seriti and Musi had not opposed their application for this and, according to this week’s court judgment, claimed “that they relied on the Presidency and Minister of Justice and Constitutional Development to defend the report [presumably the commission’s report].”

In August 2019 the North Gauteng high court set aside the commission’s findings.

Commission failures

Daily Maverick at the time reported that “Gauteng Judge President Dunstan Mlambo said it was ‘inexplicable’ for the inquiry… to have ignored essential information before finding there was no evidence of corruption, improper influence, or fraud in the Arms Deal.

The court had further found that it was not “clear that the commission failed to enquire fully and comprehensively into the issues which it was required to investigate on the basis of its terms of reference”.


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This week’s court judgment said the timeline of how legal issues unfolded was important to note and that Seriti and Musi had not initially reacted to the August 2019 ruling.

“Some 21 months later, on 10 May 2021 they received a complaint of gross misconduct from the Judicial Service Commission (JSC) at which point, although they claimed that the judgment was wrongly decided, they decided to change their minds after receiving the complaint from the JSC,” it said.

“Four further months elapsed after receiving the complaint before they filed an application for leave to appeal.”

Gross misconduct complaint

Seriti and Musi, according to the judgment, explained that the four-month delay was due to having to consult and prepare a response to the gross misconduct complaint.

The judgment said it was “clear” their application to the court for leave to appeal “would never have been lodged had it not been for the complaint lodged before the JSC.”

Seriti, according to the judgment, had stated: “We have since been advised to look into the possibility of appealing and challenging the findings of the high court because those findings are being used to underpin their complaints of judicial misconduct against us.”

Appeal application two years late

It was not Corruption Watch or Right2Know’s actions that lodged complaints of judicial misconduct against Seriti and Musi — it was organisations Open Secrets and Shadow World Investigations.

According to the judgment, Seriti and Musi “were prepared to accept a ‘wrongly decided’ outcome” — in other words, the August 2019 court finding — until the judicial misconduct complaint was lodged.

The judgment summarised the matter: “The application for leave to appeal was more than two years late. The only excuse proffered by [Seriti and Musi] was that their anxiety about the consequences of the judgment was triggered by a complaint lodged before the Judicial Service Commission. 

“For the reasons advanced there is not but a veneer of a justification for applying for leave to appeal in a case in which two senior judges decided to abide the decision of this Court and did nothing to change their mind until the complaint was lodged.”

No prospects of a different conclusion

The judgment also found that there were “no prospects that another court would come to a different conclusion regarding the assessment of the flaws and failures inherent in the Commission of Inquiry report as was set out in the review judgment.”

In 2020 Paul Holden, for Shadow World Investigations, estimated that the Arms Deal (when adjusted for inflation and based on the rand that year), cost R142-billion.

Some of the Arms Deal history is succinctly detailed in the August 2019 court judgment.

It said in 1997 a procurement process started to implement the Strategic Defence Procurement Package.

This was finalised in 1999. 

“Through the [deal], the South African government acquired a number of weapons systems,” the court papers said.

“From its inception, the [deal] was engulfed in controversy arising from allegations, in the public domain and in the media, of corruption and other criminal conduct relating to the procurement process undertaken to acquire these various weapons systems.” DM

 

Gallery

Comments - Please in order to comment.

  • Karl Sittlinger says:

    Mr Willie Seriti and Mr Hendrik Musi (just cannot bring myself to call you judges anymore), shame on you for selling out.

  • Miles Japhet says:

    These two judges deserve to be disbarred.

  • jcdville stormers says:

    Accountability in Mzansi is a difficult task

  • Manfred Hasewinkel says:

    It is outrageous that Judges Seriti & Musi are sailing into the sunset on their fancy judges’ pensions. Hopefully they will be relegated to a standard state pension of R1700-R1720 pm sooner than later. Even that seems unbearably generous.

  • Beyond Fedup says:

    How much were these two idiots paid to cover it up and they were no doubt also paid handsomely during the existence of such commission. It is plainly obvious that it was a highly biased, puerile, inept and pathetic exercise in attempting to exonerate the guilty for nefarious political ends. This is straight out of the devious Hlope book as well as the hideous public protector, or rather public menace. Reminds one of the Estina report where the two principal criminals ie Magashule and Zwane, were outrageously omitted. How badly this beloved country has suffered under these evil scumbags and the ANC that it has become.

  • Fiona Ronquest-Ross Ronquest-Ross says:

    I just love the law and seeing justice being served. The chickens are coming home to roost… and roast many of those who thought they could pull a fast buck out of a country which never needed any of the arms deal arsenal in the 1st place. Thank you to the whistleblowers, civil society, tenacious journos and some brave politicians.

  • Gerrit Marais says:

    Really? They are still judges? Judging what and whom?

  • Chris Green says:

    A Luta Continua !! so legal eagles (or turkeys !!) made findings during the apartheid era in favour of the govt, and now we have the same (s)ilk doing it for this govt. Morality is colourless, as is ethics and anything else worth “dying for ” ….. ho hum…!!! Time to cull the politician numbers – just too many around the world. Let’s vote.

    • Stephen T says:

      Don’t forget the notable difference that the apartheid government made a tangible and legitimate effort to prevent Communism gaining a foothold in southern Africa. In contrast, this new government sank into corruption purely for the sake of personal greed. They both “did the wrong thing” but for very different reasons.

  • Chris 123 says:

    Amazing how quickly these guys fell in with the corruption. Disgraceful, hope they lose their pensions.

  • David Mark says:

    I’m surprised they are still judges. They should not be, compromised and no sense of ethics nor morality. Shame on them both.

  • Roelf Pretorius says:

    I wonder if, in the mentioned R142 billion, the fact that it must substantially contributed to the collapse of Denel. Because the weapons that were bought, were all sourced from overseas firms, while the expertise that the Denel personnel acquired during their manufacturing of weapons for the apartheid government was completely ignored. I specifically know of some of the proposals of Denel that was rejected in favour of overseas products. If the Denel products were accepted, not only would the costs not have ballooned as a result of the weakening in the rand, but Denel would then have had the business to sustain itself.

  • Dhasagan Pillay says:

    Imagine if the Judicial Service Commission actually acted in the best interests of litigants…
    would our judiciary behave better? could courts speed up their rate of work to a glacial pace?
    would Judges who drive into walls and then verbally assault respondents still be judges?
    Warning – you may need psychedelics to do so.

  • Abel Appel says:

    These two esteemed jokers have ensured that all their colleagues have bceome tainted. The sad reality is that according to the constitution they are judges for life. It was an injustice to have appointed them to the bench. They are a disgrace to the judiciary.

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