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• First published in the Sunday Times

Civil society groups have gone to court to have the findings of the Seriti commission of inquiry into the arms deal set aside. Chris Barron asked David Lewis, chairman [Note: David Lewis is the executive director of Corruption Watch; Mavuso Msimang is the chairman] of Corruption Watch …

Why should the findings be set aside?
The Commissions Act requires a commission of inquiry not simply to listen to the evidence before it but to go out and investigate the matter in an inquisitorial sort of way. And it hasn’t done that. It simply relied on evidence that was presented to it, and has taken that evidence in a very questionable, selective manner. So we think that the processes adopted by the commission don’t make one confident of the outcome.

What are your chances?
We think they’re pretty good. This is not a small matter. The record runs to over a million pages, so this is going to be a long and resource-consuming business. We took very serious legal advice, and we’re advised we’re on pretty strong ground.

Is there a legal precedent?
I don’t know that there’s a precedent for setting aside the outcome of a judicial commission of inquiry. There is a precedent for setting aside court proceedings and other administrative decisions. We’re not arguing that this is an ordinary administrative decision. We’re arguing in the first instance that they haven’t done what a commission is mandated to do. But there are also administrative grounds for setting it aside. The way in which evidence was gathered, the way in which certain evidence was ignored, the way in which witnesses were not given access to certain of the evidence presented to the commission. So we think there are quite strong grounds for setting it aside.

Are we talking about a judicial review of the evidence?
It’s not an appeal in that sense. It’s a review rather of the processes adopted. But I’d imagine that if we’re alleging that certain evidence has been disregarded the court would have to have regard to what it is that we’re alleging was disregarded and what weight should be accorded to that. So there will be a consideration of certain of the facts of the matter.

If the findings are set aside, what then?
Then they no longer stand as a judicial finding on whether or not there was corruption involved in the arms deal. We think that’s important in and of itself. As things stand at the moment the commission has exonerated those Involved in the arms deal from any corrupt conduct. We believe pretty firmly that that is not a credible finding.

Would you then want another commission of inquiry?
No, we’re not asking for that. What we achieve out of it is the following: firstly, we get the court to pronounce on how a commission of inquiry is meant to be conducted. South Africans still repose a lot of confidence in the judiciary and in judicial commissions of inquiry as truth-seeking and truth-finding mechanisms. We think it is very important that this continues to be the case. Secondly, nobody will be able to claim that a judicial commission of inquiry has exonerated those alleged to have been involved in corrupt conduct. Already Schabir Shaik, whom a court found guilty of corruption because of the arms deal, has intimated that he intends to go to court to get the judgment against him reversed.

Having the findings set aside doesn’t bring us any closer to who did or received what, does it?
Well, it doesn’t, but it certainly finds that the truth as represented in the finding of the Seriti commission is not the truth, and doesn’t stand as such.

Are we ever likely to get to the bottom of this?
We’re not suggesting we go through this process again, so maybe we don’t get to the bottom of it. But we dispel any notion that the Seriti commission did get to the bottom of it.

Will victory have an impact on any future nuclear deal?
I would hope so. I think there is a large lesson from the arms deal, and that is that one does not only get involved in these huge deals after the fact. That’s why if there is to be a big government energy procurement deal one wants organisations like ourselves to get involved in it right from the beginning and insist that the processes be a whole lot more transparent right from the [start] than was the case in the arms deal.

Will the setting aside of the arms deal findings ensure greater transparency in the nuclear deal?
Not in the short term. But it’s one of the lessons of the arms deal. Twenty years later we’re still trying to find out the truth. That shouldn’t be allowed to happen again. We’re hoping it will lead to greater transparency in government procurement processes and greater vigilance by organisations like ourselves.

Will it make it more difficult for players in the nuclear deal to get away with corruption?
I hope it would make people a bit more wary about engaging in the sort of conduct we think characterised the arms deal. The fact that that conduct will not have been exonerated will concentrate the minds of those who might want to engage in similar conduct in future.

Even though it appears the arms deal culprits will get away with it?
Yes, but they won’t have been exonerated by a judicial commission of inquiry.

Is that as much as we can hope for?
Yes, but it’s not a trivial outcome. That the public should continue to have confidence in judicial commissions of inquiry is an important outcome.