/OPINION | Arms Deal whistleblowers: Judgment setting aside Seriti findings will have profound impact on SA politics

OPINION | Arms Deal whistleblowers: Judgment setting aside Seriti findings will have profound impact on SA politics

2019-08-21 12:40

The decision by the court on the Seriti commission is the result of tireless efforts by civil society. It shows that impunity and cover-ups do not work, write Andrew Feinstein, Paul Holden and Hennie van Vuuren.

We welcome the judgment delivered today in
the High Court that sets aside the findings of the Seriti Commission of Inquiry
into the Arms Deal. This is a profound victory for South African civil society
and is the result of years of collective struggle against a massive cover-up of
international bribery and corruption.

The judgment of the High Court is clear and
unambiguous in finding that the commission made no attempt, at any time, to
conduct a meaningful investigation into the Arms Deal. It found that “the
enquiry and investigation that the Commission was called upon to undertake
never materialised”. In summarising its findings, it also damningly found that
due to “so manifest a set of errors of law, a clear failure to test evidence of
key witnesses, a refusal to take account of documentary evidence which
contained the most serious allegations which were relevant to its inquiry, the
principle of legality dictates only one conclusion, that the findings of such a
commission must be set aside.”

The judgment will have a long-term and
profound impact on South African politics and future commissions of inquiry.
For the first time, South Africa’s courts have ruled that commissions of inquiry
are reviewable, and must be conducted in line with the principle of fairness
and legality. It also confirms that investigations by commissions must be
pursued with an “open and enquiring mind”. This judgment creates a
test of future commissions of inquiry, and sends a warning to all future commissions
of inquiry that they must investigate matters under their purview fairly,
fully, and with an “open and enquiring mind”.

OPINION | One last chance for accountability in the Arms Deal case – the original state capture

In August 2014, in response to a call by
civil society, we announced that we were withdrawing from the commission of inquiry,
despite the fact that we had made detailed submissions to the commission and
provided thousands of pages of evidentiary documents. At the time, we cited
numerous examples of the deeply unsatisfactory manner in which the commission was
conducting its investigation, which rendered it little more than an
establishment cover-up.

The judgment of the High Court has only
served to confirm our original conviction that the commission had no interest
in investigating, or even acknowledging, the extraordinary and pervasive
corruption that tainted the Arms Deal. This was made more painful by the fact
that millions of South Africans have paid for the Arms Deal through lost
opportunities, deepening inequality and the weakening of the countries
democratic institutions which it facilitated.

The Seriti commission, however, is only the
most recent development in the two-decade long story of impunity and cover-ups
that has marked the Arms Deal. This year marks two decades since the infamous deal
was concluded by Thabo Mbeki’s administration. Detailed evidence of corruption
emerged from even before the conclusion of the contracts. Since then, multiple
investigations in South Africa and abroad have uncovered “commission
payments” to politically connected agents worth hundreds of millions of
dollars.

All of these investigations ultimately went
the way of the Seriti commission – derailed through disinterest, political
interference, name-calling and capitulation in the face of political power.

That decision by the court today is the
result of tireless efforts by civil society. It shows that impunity and
cover-ups do not work. South Africa will never be free of the lingering
political stench of the Arms Deal until all aspects of the deal are fully investigated
and those who took money and peddled influence are brought to justice. The
prosecution of French arms company Thales and President Jacob Zuma is an
important step in the right direction and is being watched with anxiety by
those implicated in corruption. More prosecutions should follow.

It is equally important that those European
companies that sought to corrupt our new democracy and thereby steal scarce
public resources from the poor and unemployed also face the full might of the
law. Their corruption was cold, premeditated and scandalous. They must pay the
price – in financial, legal, moral and reputational terms – for fatally
undermining South Africa’s post-apartheid democratic institutions and creating
the febrile political present.

This, of course, is not to lose sight of
the conduct of the Seriti Commission and its officers. The High Court judgment
confirms that the commission, which cost over R137m, “failed manifestly to enquire into key issues as is to be
expected of a reasonable Commission”.
Judges Seriti and Musi must explain themselves, as must the multiple advocates
who earned millions in fees for being party to a commission that was clearly
disinterested in finding the truth. We call on both the Judicial Services
Commission and the appropriate bar councils to investigate their conduct.

While a number of evidence leaders and
researchers resigned from the commission due to conduct of the commission lead
by Judge Seriti, many did not. Instead their conduct served to bolster an
exercise that was a patent cover-up.

As the findings of the 1st
People’s Tribunal on Economic Crime in 2018 clearly showed, the Arms Deal has its
roots firmly embedded in apartheid corruption. It was because of impunity for
those crimes that this became post-apartheid South Africa’s first case of state
capture. It enriched multinational corporations and a handful of opportunists
and criminals, all of whom then colluded to destroy those institutions that
could hold them accountable.

The Arms Deal ushered a corrupt network
into this country’s democratic politics and paved the way for contemporary
state capture. If we are to challenge state capture in the present, we must
acknowledge and seek justice for those instances of state capture from the
past, and learn lessons for the future.

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