Judge Willie Seriti could be taken to court soon if he fails to give explanations for the commission's failure to summons the ANC and its records.
Advocate Paul Hoffman of the Institute for Accountability in Southern Africa is still waiting for responses to 13 questions he sent to Seriti, including why he chose not to summons the ANC.
If Seriti fails to respond to Hoffman's questions, and if his client, former banker Terry Crawford-Browne, cannot persuade the commission to subpoena the documents and records he needs to give evidence, Hoffman said they would have no choice but to litigate.
"In this commission, it is notoriously well known that the ANC has been implicated in the alleged bribe-taking and one of its former MPs, Andrew Feinstein, has widely publicised the allegation that the ANC's 1999 election campaign was paid for out of the proceeds of the bribes from the arms procurement deal," said Hoffman. "In these circumstances, it is irrational to decline his request as the commission has done to obtain access to the documents before the hearings commence on August 5. All of the complainant witnesses will be pre-judiced if they are not given access to the financial records of the ANC and to its documents pertaining to its internal post-Polokwane investigation into the arms deal."
Although the litigation is planned as a single court action, Hoffman said Seriti would be faced with a request for a court order compelling him to answer the questions, and the commission will also be drawn into legal processes to compel it to send out subpoenas to the ANC and to access its records and documents.
Dragged into the scandal
Hoffman represented Crawford-Browne in his court battle that forced the hand of President Jacob Zuma – whose name has also been dragged into the scandal – to set up a commission of inquiry into corruption allegations regarding the 1999 multibillion-rand arms deal.
The commission put out a press release this week that hit out at Crawford-Browne's "persistent attempt" to prescribe to the commission, and said it was in possession of massive documentation implicating many people.
"The public must understand that, before the information is properly interrogated in the upcoming public hearings, the commission cannot be party to any exercise to canvass it in the public domain and bandy around the names of those implicated," it stated.
Asked whether Seriti was planning to answer Hoffman's 13 questions by March 22, commission spokesperson William Baloyi said: "Unfortunately, I can't respond as the chairperson is already out of office and he will [only] be available on Monday."
Earlier this week, Kate Painting, one of the two legal researchers who accompanied Seriti on recent overseas fact-finding trips, resigned. Although Painting could not be reached for comment, the Mail & Guardian was informed by sources close to her that she will return to a job as a researcher for the judges of the Supreme Court of Appeal, where she first met Seriti.