As the arms deal commission in Pretoria resumes its inquiry this week into the 1999 arms deal, three high-profile witnesses represented by Lawyers for Human Rights (LHR) have raised serious concerns about a lack of openness at the commission.
In a statement on Monday, Paul Holden, Hennie van Vuuren and Andrew Feinstein – who have all published books on the arms deal and Feinstein was an ANC MP who resigned over the deal – said the arms deal commission presents a unique opportunity for the full story behind the deal to be uncovered.
But this opportunity will be "squandered", unless "significant" changes are made to the way it operates.
They called for the commission to:
- Issue an updated list of all witnesses and the approximate dates of their testimony;
- Immediately make available to all interested parties, and on the commission's website, full witness statements and the documents to be used by witnesses during testimony;
- Give adequate notice of any changes to those statements or additional documents; and
- Make immediate arrangements for the three witnesses to view documents in the commission's possession, which they have requested, and which they are legally entitled to view.
The commission resumed on Monday following a brief adjournment to allow Armscor to declassify documentation.
The Mail & Guardian previously reported about the perceived unavailability of documentation at the commission.
'Limited' witness statements
The three witnesses also raised concerns about arms procurement parastatal Armscor's witnesses. LHR said the list of the witnesses was only made available to them on September 27 via the commission's website – three days before the witnesses were due to give evidence.
This, despite "repeated and detailed" requests for the list of witnesses.
"The testimony of the Armscor officials is key to understanding who and how the procurement decisions are made. It is also a unique opportunity to understand how Armscor – which covertly armed the apartheid regime – functions in a democratic society," LHR said.
And witness statements have also not been made available to their lawyers, Holden, Van Vuuren and Feinstein said.
They said they were informed that the subject and content of the testimony would only be revealed during the hearings, and only "limited" witness statements were made available for the Navy's witnesses.
"This is obstructive to any meaningful preparation and prevents us and our legal representatives from engaging with evidence brought to the commission's attention by witnesses," they said.
Cross-examine witnesses
In their statement, LHR also said interested parties were invited to apply to cross-examine witnesses, but this is "impossible" under the commission's prescribed procedures.
"Parties who wish to cross-examine must seek leave from the commission to do so, and they may only do so at the end of a witness' testimony. The practical effect is that a legal team must be present to monitor the witness testimony in order to know whether cross-examination is necessary.
"This is extremely challenging and prohibitive to all interested apart from those with large sums of public or private money to pay legal fees.
"Even in the best possible circumstances, it is impossible to properly prepare for cross-examination without access to witness statements and the documents upon which the witnesses intend to, and do rely, during testimony.
"As things presently stand, the testimony of the Navy and upcoming Armscor witnesses risks going unchallenged, despite real concerns with the 'official' perspective on the deal."
Supporting documents
LHR said the commission has failed to make documents available to it. This is despite a "substantial" joint submission made to the commission, at its request, by Feinstein and Holden, including "thousands" of pages of supporting documents.
"To this end, Andrew Feinstein has assisted the commission in setting up meetings with international prosecutors and investigators," said the LHR.
The three witnesses were subpoenaed in January this year and their lawyers said these subpoenas give the witnesses the right to see any documentation relevant to the issues on which they will give evidence.
"However, despite repeated requests, the commission has not made a single document available to us," the LHR said.
William Baloyi, spokesperson for the commission, said the issues raised by the LHR would be given to the commission for consideration.