The Seriti Commission

Background

Terry Crawford-Brown petitioned the Constitutional Court in 2011 to compel former president Jacob Zuma to establish a commission of inquiry into the procurement packages and allegations of criminal misconduct resulting from them, and Zuma agreed to do so[i]. President Jacob Zuma established the Seriti Commission in 2011 to investigate corruption, fraud, and impropriety allegations in the Strategic Defence Procurement Package (SDPP), as well as to inquire into the reasoning behind the Arms Deal of 1999. South Africa spent R30 billion on sophisticated military equipment[ii]. The commission was also established to investigate whether the equipment purchased in the deal was properly used and whether job opportunities associated with the arms deal had materialised or not[iii]. The establishment of the commission was fuelled by allegations levelled against those involved in procurement and suppliers. Judge Willie Seriti was appointed by President Jacob Zuma to lead the probe. Judge Seriti is the justice of the Supreme Court[iv]. Judges Francis Legodi and Willem van der Merwe were to assist Seriti, but both resigned before the hearings began[v]. Seriti was later assisted by Judge Hendrick Musi, the judge president of Free-State High Court at the time[vi].

The mandate of the commission

The Seriti Commission was tasked with researching the rational basis for the Strategic Defence Procurement Package and also investigate if the equipment purchased was well utilised[vii]. It was also tasked with investigating whether the SDPP's anticipated job opportunities had materialized and to recommend steps to follow to realise them if they had not[viii]. The commission was also expected to investigate whether there was any impropriety in contract awards, whether by government officials or private individuals, and whether the deal should be cancelled as a result[ix]. After reviewing all of the evidence, the commission was empowered to make recommendations to the president on the best course of action[x].

Phases of the proceedings

To help coordinate the arms deal investigation, the commission segmented its tasks into phases in order to conduct its mandate[xi]. The first stage entailed reviewing all submissions made to the commission by parties interested in the SDPP[xii]. The second stage entailed public hearings during which the commission heard evidence submitted in the first stage and witnesses were cross-examined[xiii]. According to the regulations, anyone could apply to the commission to cross-examine witnesses or examine documents presented in witness testimony[xiv]. However, when it came to documents and cross-examination of witnesses, the commission was chastised[xv].

Resignations of members

While judges Willem van der Merwe and Francis Legodi resigned before the hearings commenced, so did a senior investigator and a law researcher. On the other hand, the commission's secretary, a top attorney, was discovered dead in his car in KwaZulu-Natal in 2012, reportedly by his own hand[xvi]. In January 2013, Norman Moabi, a senior commissioner investigator, resigned, claiming that Seriti was  an autocratic ruler and that facts were tampered or withheld from commissioners[xvii]. Moabi also alleged that the Commission was following a second agenda that was designed to discredit critics of the Arms Deal[xviii]. The same year, law researcher Kate Painting and commissioner Judge Francis Legodi resigned[xix]. Painting had similar claims to those of Moabi. Painting claimed that shortly after starting work with the Commission, another agenda emerged, along with an obsession with information control and incompetent administration[xx]. For example, Judge Seriti ruled that the Debevoise and Plimpton report was inadmissible because it had been leaked and this meant that the commission would not look into the serious corruption allegations[xxi]. Carol Sibiya and Barry Skinner, two advocates, resigned from Seriti in a 15-page letter in July 2014 and they asserted in the letter that the commission's head of legal research, advocate Fanyana Mdumbe, treated them disrespectfully[xxii].

Termination of Contracts

The Commission's contracts with eight of its lawyers were not renewed in 2013[xxiii]. These included an assistant legal researcher, two senior researchers, head of legal research and four legal practitioners. The commissioner clarified that the contracts were ended because there was a need to save money and necessary work was completed[xxiv]. According to four independent sources, the employees were dismissed because they were unacceptably loyal to Judge Seriti, and another source claimed that they were dismissed because they refused to support the second agenda[xxv].

Delay in Proceedings

The first phase of the proceedings was expected to be completed by the end of 2013. Seriti becoming ill, power outages, burst water pipes and witness requests for additional preparation time all contributed to the proceedings being postponed[xxvi]. The commission also concluded that the Arms Deal was well utilised and needed by the South African National Defence Force (SADF)[xxvii].

Notable Witnesses

Former president Thabo Mbeki taking a stand as a witness at the commission. Source: Eye Witness News

The first session's witnesses were predominantly from air forces and the navy, but there were also some Armscor officials present[xxviii]. Armscor's Robert Vermeulen, Rear Admiral Robert Higgs, Rear Admiral Alan Green, Brigadier-General Piet Burger, and Brigadier-General John Bayne were among the first to testify[xxix]. Former president Thabo Mbeki, former ministers Mosiuoa Lekota, Alec Erwin, Trevor Manuel and Ronnie Kasrils also testified at the commission[xxx].

Findings of the commission

The final findings of the commission were released in December 2015[xxxi]. The Commission's final report was deferred after extensions were requested and additional funds were allocated[xxxii]. The commission held no one accountable, concluding that there was no undue influence in bidder selection[xxxiii]. Former President Jacob Zuma went on to say that the commission discovered no evidence of corruption and bribery in the arms deal procurement process, primarily in the selection of bidders and costs[xxxiv].

Arguments against the commission

On the 28th of August in 2014, researchers Hennie van Vuuren, Andrew Feinstein, and Paul Holden stepped down from the commission in opposition, calling for its dissolution and the prosecution of those involved in corruption[xxxv]. On 29 September 2014, over thirty South African Social Justice organizations called for the Seriti Commission to be disbanded due to its refusal to call witnesses and consider critical evidence[xxxvi]. Civil society groups Right2Know and Corruption Watch argued that the commission was a pack of lies because it failed to take into account the evidence, and that its findings should be disregarded[xxxvii]. They also claimed that Seriti's commission misled the public and cleared politicians and public servants of wrongdoing in connection with the arms deal[xxxviii]. Another civil society organization, Open Secrets, argued that the Seriti Commission's failure was primarily due to its failure to hold European arms companies accountable, such as Thales and BAE, despite clear evidence of bribery in their home countries[xxxix]. Authorities in the United Kingdom accused BAE Systems of paying R2.1 billion in bribes to win the contract[xl]. The German Frigate Consortium and the German Submarine Consortium have been accused of paying officials responsible for monitoring the arms deal selection process, such as Shamim Chippy Shaik, the chief of acquisition, whose brother Schabir was found guilty of corruption in the deal in 2005[xli]. Former President Jacob Zuma, on the other hand, was facing criminal charges for allegedly receiving payments from Schabir Shaik in order to ensure that Shaik's company was given a share in the arms deal as well as allegedly accepting bribes from the French company Thales in order to help protect the company from criminal investigations[xlii].

Court judgement on the findings of the commission

The report was deemed a resounding failure to hold those responsible for corruption accountable[xliii]. The findings of the Seriti Commission from 2016 were overturned by the High Court in Pretoria in August 2019[xliv]. This came after two civil society organizations, Right2Know and Corruption Watch, filed a request to have the commission's findings declared invalid[xlv]. Judge Mlambo emphasized the substantial amount of tax-payer money spent at the commission, which was reported in June 2019 as nearly R140 million[xlvi]. Judge Mlambo claimed that the commission failed to fully investigate matters that it was tasked with investigating because the questions posed to the witnesses were hardly those of an evidence leader seeking to ascertain the truth[xlvii]. Mlambo also claimed that the commission ignored a case in which the state prosecuted former President Jacob Zuma's financial advisor at the time of the arms deal, Schabir Shaik[xlviii]. Mlambo discovered that the commission treated one of the commission's witnesses, controversial businessman Fana Hlongwane, favourably, with his statement necessitating further inquiry, notably when it came to the R60 million allotted to him[xlix]. Mlambo concluded that the Seriti Commission's findings must be set aside due to the failure to evaluate evidence of essential witnesses and an inability to take into account documentary evidence containing serious allegations that were vital to the inquiry[l].