Allegations of a secret agenda have cast yet more aspersions on the commission's credibility. Glynnis Underhill reports.
The chairperson of the Arms Procurement Commission, Judge Willie Seriti, must explain serious claims made in a startling resignation letter by one of its senior investigators that he is operating clandestinely with a "second agenda" or resign.
This call was made by advocate Paul Hoffman of the Institute for Accountability in Southern Africa, who represented retired banker Terry Crawford-Browne in his court battle to force the government to set up an independent inquiry to investigate allegations of corruption in the multibillion-rand arms purchases. The action was withdrawn after President Jacob Zuma, whose own name has been dragged into the arms deal scandal, announced the establishment of the commission last year.
"Seriti is opening himself up to an application for his recusal if he doesn't adequately deal with the claims made in the resignation letter," said Hoffman this week.
The departure of respected attorney Mokgale Moabi from the commission, and the leaking of his resignation letter to Beeld and Mail & Guardian this week, has raised questions about whether the commission has lost credibility.
The inquiry has courted controversy from the outset and there is now apparently deep unhappiness among some members of the commission's legal staff. Further resignations are to be expected, a source close to the process alleged.
The commission's curious processes first came under the spotlight after two respected advocates, Vas Soni and Sthembiso "Sticks" Mdladla, were removed as its evidence leaders last year on what a legal source said were "flimsy grounds".
Comment on private matters
It has also made some questionable appointments, including hiring Riena Charles as a legal investigator. Charles was acquitted on fraud and corruption charges following her removal as the chief of Mpumalanga's health department nine years ago. Another appointment that raised eyebrows in legal circles was that of Pretty Luphondo, who replaced Mvuseni Ngubane, the respected Durban attorney who mysteriously committed suicide last year. Luphondo was previously a human resources director in the department of justice, and the commission broke with tradition in appointing her to this key role as she is not a legal professional.
In his resignation letter, Moabi raised nepotism claims when he said the administrative wing of the commission is "managed by extended family relationships".
The M&G has established that the appointment of Famkelo Hlatshwayo as office manager at the commission is causing an uproar among staff as she allegedly wields "extraordinary influence". Insiders claim that Hlatshwayo is related by marriage to Seriti, but the commission will neither verify nor deny that she is the niece of Seriti's wife.
"The allegation that the administration wing of the commission is managed by extended family relationships is false," said commission spokesperson William Baloyi. He declined to "comment on private matters" relating to Hlatshwayo.
The goings-on at the commission have again given rise to concern about whether the truth about the arms deal scandal will ever be told. Moabi's resignation letter gave two examples of statements made at the commission that exposed the existence of an agenda "not commonly known to other people".
Under the heading "The penny has dropped", he cited the following statement that had been made at the commission: "When you look at the submissions made by the Terry Crawford-Brownes of this world, you realise that they are not factual but are based on hearsay. There is no substance in what they have said in the public media up to now."
A second disturbing statement he recounted in his resignation letter has raised doubt in legal circles about whether the credibility of the commission can be restored in the public eye. The statement reads: "When we will have dealt with the first witnesses, they will not again make noises in the public media."
Although Moabi confirmed his resignation when contacted by the M&G, he would not attribute the statements made in his resignation letter and declined to elaborate. However, two sources alleged that Seriti had made the revealing comments.
Crawford-Browne said the arms deal could be heading back to court. "It could well be. We have given the Seriti commission enough rope to hang itself," he said. "The whole thing is a complete stuff-up. They think if they just play for time, it will go away. But it won't go away."
He said he had received an email in November to go to the commission hearings in March, but the whole thing now appears to be "in limbo". "We knew right from the beginning that we have got to work with what we've got as judicial commissions are a place to park a political hot potato. The thing was to drag it out, which is the whole history of the arms deal."
A legal source with considerable experience of commissions of inquiry told the M&G that Seriti, in his role as chairperson, should be allowing the evidence leaders the freedom to collect evidence and pursue potential witnesses, but Moabi's resignation letter again casts doubt on the processes of the commission.
In his letter, Moabi said he had come to the commission to serve with "integrity, dignity and truthfulness".
"I cannot with a clear conscience pretend to be blind to what is going on at the commission. I am unable to be part of this commission, since I have satisfied myself that the chairperson [Seriti] seems to have other ideas and modus operandi to achieve with the commission what is not the clear mandate of the enabling Government Gazette."
Moabi said he believed there were two agendas in place at the commission. The first was the one defined in the Government Gazette. "The second agenda is the real work in progress at the commission that will deliver the report to the president of the republic of South Africa," he wrote. This second agenda is based on certain foundations, Moabi said, which include:
A "total obsession" with the control of the flow of information to and from the commission by the chairperson;
Clandestine preparation of the documents and/or briefs that are handed to the evidence leaders; and
"Unknown persons" who dictate what information should go into briefs, to the exclusion of the professional staff and attorneys, and who decide which evidence leaders will deal with certain witnesses.
The commission said it has only one agenda, namely investigating the matters set out in its terms of reference. "Any other agenda that Mr Moabi may be alleging is a figment of his imagination," said Baloyi.
It is the prerogative of the chairperson to decide how to allocate work, he said. "The unknown persons that Mr Moabi is alleging are again a figment of his imagination."
Moabi claimed all the professional staff were given "strict instruction" to contact only one person with any queries. Any input by others was excluded if it did not advance the second agenda, he said.
Baloyi said the "one person" alluded to is the head of the legal and research team, Khelo Nolumbe, who has been given the task of interacting and communicating with the evidence leaders. This, he said, is aimed at "avoiding confusion" and ensuring the integrity of the communications.
Yet Moabi spoke in his letter of "the deliberate distraction of the professional staff, who are kept occupied with matters that will not ultimately be part of the brief contents".