In 2016 Corruption Watch (CW) and Right2Know (R2K) challenged the findings of the Commission of Inquiry into Allegations of Fraud, Corruption and Wrongdoing in the Strategic Defence Procurement Package (the Seriti commission). The two organisations argued that the commission misled the public by exonerating politicians and public servants of any wrongdoing relating to the arms deal, as the strategic defence procurement package was widely known.
Presided over by Judge Willie Seriti and Judge Hendrick Musi, the commission sat for four years and in its report, it stated that it could not find any trace of corruption in the arms deal, declaring it to have been completely above board.
In August 2019 the North Gauteng High Court set aside the commission’s report, validating the concerns of CW and R2K that the commission failed to conduct a meaningful, credible and open-minded investigation. This was a highly significant ruling because persons such as former president Jacob Zuma used the flawed report to try to exonerate himself and indeed, secure a permanent stay of prosecution from charges of corruption.
Now Seriti and Musi are to face the likelihood of an inquiry into their conduct in the matter.
NPOs Shadow World Investigations and Open Secrets submitted a complaint to the chairperson of the Judicial Conduct Committee (of the Judicial Service Commission) on 11 August 2020, focusing their application on the High Court judgment handed down almost two years ago. The complaint, according to a statement issued by the two organisations, also asks the committee to “consider whether certain actions by the judges may constitute criminal misconduct and, if so, to refer these matters to the National Prosecuting Authority for further action”.
The complaint was lodged, said the statement, to bolster public trust in the integrity of the judiciary and send a strong signal that the kind of conduct that enabled the Seriti commission’s cover-up of serious crimes should not be tolerated.
Acting Judicial Conduct Committee chairperson Deputy Chief Justice Raymond Zondo, in a reply, said that, after considering the application, he was “satisfied that, in the event of Shadow World Investigations and Open Secrets’ complaint being established, it is likely to lead to a finding by the Judicial Service Commission that Judge Seriti and Judge Musi are guilty of gross misconduct as envisaged in section 14 (4) of the JSC Act”.
Accordingly, Zondo said, he was obliged to refer the complaint to the Judicial Conduct Committee for it to “‘consider whether it should recommend to the Judicial Service Commission that the complaint should be investigated and reported on by a Tribunal’”.
The committee will meet on 12 June to deliberate. Seriti and Musi could face impeachment, if found guilty of gross misconduct.
Fighting for transparency and accountability
CW and R2K’s application provided numerous examples of the ways in which the commission failed to conduct an investigation. Broadly speaking, CW and R2K alleged that the commission had failed in three main ways:
- First, the commission failed to gather evidence that should have been easy for it to access, and when it did have access to key evidence, it failed to consider it. The commission, for example, did not get access to a single document that was held by criminal investigators in other countries such as the UK and Germany. Equally disturbing was the fact that the commission was given over 3-million documents held in a shipping container by South African authorities flowing from previous investigations. The commission, however, refused to look at all the contents of the container, leaving millions of documents unexamined.
- Second, the commission failed to admit key documents on questionable grounds. One of the most notable examples of this was that the commission was unwilling to admit the infamous Debevoise & Plimpton report. This was a report written by the US law firm Debevoise & Plimpton that looked at corruption at Ferrostaal, one of the arms deal suppliers. The report found that Ferrostaal had made over €50-million in payments to consultants on the arms deal. The payments were made to politically connected individuals, and there was no proof of any meaningful work done by these individuals. The report concluded that the payments were suspicious and deserved further investigation.
- Third, the commission failed to test the evidence of witnesses who appeared before it. In other words, the commission failed to ask witnesses accused of wrongdoing any meaningful questions. As noted above, this included Fana Hlongwane, who testified for a few hours and was not asked a single question by Judge Seriti or Judge Musi. Another example of this was BAE Systems, the biggest contractor in the deal. BAE Systems was merely asked to read a statement into the record on the final day of public hearings, and was not asked a single question.
Handing down judgment, Judge President Dunstan Mlambo labelled the process one of “manifest failure”.
The judgment stated that the commission failed in several ways to enquire into key issues “as is to be expected of a reasonable Commission”.
- “It refused to admit critical reports such as, the DP [Debevoise & Plimpton] Report, at best for it on the basis of a clearly inaccurate understanding of the law of privilege.
- It accepted facts as common cause when a reasonable commission would have probed the evidence in order to test the veracity of the evidence from what were referred to as non-critical witnesses.
- It refused to examine the proceedings of the Schabir Shaik trial on the inexplicable basis that somehow the record of that trial was not relevant to the fundamental nature of the Commission’s inquiry.
- At best for the Commission, it failed to appreciate that the rules of evidence and procedure of a commission are considerably less strict than those of a Court. Whereas a Court of law is bound by rules of evidence and pleadings, a commission is not so bound. It may inform itself of facts in any way it pleases, including by hearsay evidence, newspaper reports or representations or submissions without sworn evidence. Commissions are designed to allow an investigation which goes beyond what might be permitted in a Court”.