The North Gauteng High Court on 31 August 2022 dismissed an application for leave to appeal its judgment and order of 21 August 2019, which set aside the findings of the Commission of Inquiry into allegations of fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement package – known as the arms deal commission or Seriti commission.
The appeal application was brought by Judge Willie Seriti, the commission’s chairperson, and former commission member Judge Hendrick Musi against Corruption Watch (CW), the Right2Know Campaign (R2K), and five other respondents including the South African president and the ministers of justice, defence, and trade and industry. The two organisations were the only respondents opposing the application, as the other five chose to abide by the court’s decision.
Gauteng Judge President Dunstan Mlambo handed down the latest judgment. Mlambo also presided over the 2016 challenge to the commission’s findings, brought by CW and R2K, in which the two organisations asked the High Court to review and set aside the report. They argued that the commission had not only ignored much of the evidence placed before it but had failed to ask probing questions of those accused of wrongdoing, and consequently had not done what was asked of it.
In his August 2022 judgment Mlambo said 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’s report, as was set out in the review judgment. The commission simply failed to exercise its investigative powers in a manner required by law, he said, and there was no legal point requiring the decision of a higher court.
As with the first judgment, the full High Court bench was in agreement.
In his 2016 judgment Mlambo was highly critical towards Seriti for failing to hold those responsible for the arms deal to account. He labelled the process one of “manifest failure”.
Former president Jacob Zuma set up the commission in 2011, ostensibly to investigate allegations of corruption and irregularity relating to the government’s controversial, and costly, 1999 purchase of defence equipment including fighter aircraft and helicopters, corvettes, and submarines.
In 2015 Seriti delivered his 776-page report to Zuma. National outrage ensued when it became known that Seriti could not find any trace of corruption in the arms deal, declaring the entire process to have been completely above board.
The report stated: “Despite the fact that various allegations of fraud, corruption or malfeasance were directed at Government officials and senior politicians, no evidence was produced or found to substantiate them. They thus remain wild allegations with no factual basis.”
The Seriti commission further discredited several arms deal critics who appeared to give testimony, saying: “They have been disseminating baseless hearsay, which they could not substantiate during the commission’s hearings.”
CW and R2K’s application to review and set aside was based on the claim that the commission failed to conduct a meaningful, credible, and open-minded investigation. The two organisations also argued that the findings of the commission misled the public and merely exonerated politicians and public servants of any wrongdoing relating to the arms deal – a position that was supported elsewhere.
“Setting the commission’s findings aside means that they cannot be relied on by those accused of corruption to clear their name, either in public or before the courts,” the organisations said, adding that this would have a bearing on Zuma’s defence of corruption charges related to the arms deal.
In addition, they said, a written judgment in this case means the creation of jurisprudence about how a commission of inquiry must go about doing its job properly. “It will, hopefully, create a very clear framework and set of directions about how commissions of inquiry must conduct their investigations rigorously and with an open-mind. This is very important in South Africa, which appoints a large number of such commissions. “
Application for condonation denied
Mlambo castigated the applicants for the “excessive delay” in applying for leave to appeal. Seriti and Musi chose not to challenge the High Court’s 2019 judgment and only reacted when a complaint of gross misconduct was brought to the Judicial Services Commission (JSC) in April 2021 – 21 months later. Yet another four months elapsed after receiving the complaint before the pair filed their application for leave to appeal.
“The delay in applying for leave to appeal is clearly excessive, i.e. more than two years, and thus it behoves the applicants to provide a plausible and justifiable reason for this Court granting condonation for the excessive delay”
Seriti and Musi explained the delay as follows: they had to consult and prepare a 149-page response to the “voluminous complaint” – which in fact comprised 52 pages. They devoted considerable time to preparing for the JSC hearing on 2 July 2021 and could not attend to the application for leave to appeal before that hearing commenced. They also needed time to consult with counsel and obtain advice concerning the prospects of success of the application.
Citing paragraph 31 of Van Wyk v Unitas Hospital and Another, Mlambo explained the principle of finality and litigation, in which after a long delay, a litigant may have cause to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. This allows parties to get on with their lives.
“It follows that, notwithstanding the submissions about being in the interests of justice to grant condonation, it is clear that this application for leave to appeal would never have been lodged had it not been for the complaint lodged before the JSC. There lies the rub.”
Regarding the prospects of success, Mlambo said that even if the court was inclined to be “excessively generous”, the applicants had not presented any convincing argument.
“To the extent that prospects of success may tilt the balance in favour of the applicants, the evidence placed before this Court and which would be the record on appeal provides no basis by which there are reasonable prospects that another court might differ from the order granted by this Court.”
The application for leave to appeal was accordingly dismissed with costs, including the costs of two counsel.